1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________
3 Filing Date: July 14, 2016
4 NO. 34,033
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 DAVID HOWL,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Drew D. Tatum, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Elizabeth Ashton, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 Kimberly Chavez Cook, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
1 OPINION
2 WECHSLER, Judge.
3 {1} Defendant David Howl was convicted in a jury trial of possession of a
4 controlled substance, contrary to NMSA 1978, Section 30-31-23 (2011); possession
5 of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2001); failure
6 to maintain traffic lane, contrary to NMSA 1978, Section 66-7-317 (1978); and no
7 proof of insurance, contrary to NMSA 1978, Section 66-5-229(C) (1998).
8 {2} Defendant argues on appeal that (1) insufficient evidence supported his
9 convictions for possession of a controlled substance and possession of drug
10 paraphernalia, (2) the district court’s exclusion of certain testimony violated his
11 constitutional right to present a defense, (3) evidence was improperly admitted, and
12 (4) ineffective assistance of counsel prejudiced his defense. In its answer brief, the
13 State argues that Defendant’s failure to make a prima facie case of ineffective
14 assistance of counsel requires that Defendant request relief in a habeas corpus
15 proceeding.
16 {3} Defendant has made a prima facie case of ineffective assistance of counsel
17 based upon his trial counsel’s failure to move to suppress inculpatory evidence.
18 Therefore, we remand for a hearing on Defendant’s ineffective assistance of counsel
19 claim and any further proceedings necessitated by the district court’s determination
1 on that issue. Because Defendant has made a prima facie case of ineffective assistance
2 of counsel, we decline to accept the State’s habeas corpus argument. In the interest
3 of judicial economy, we also conclude that, should the result of Defendant’s
4 ineffective assistance of counsel hearing be unfavorable to him, (1) sufficient
5 evidence supports Defendant’s convictions for possession of a controlled substance
6 and possession of drug paraphernalia and (2) neither of Defendant’s evidentiary
7 arguments requires reversal.
8 {4} Defendant further argues that a clerical error in the district court’s amended
9 judgment, sentence, and order determining habitual offender status (sentencing order)
10 resulted in exposure to a longer sentence than that imposed at Defendant’s sentencing
11 hearing. We disagree and deny Defendant’s request for resentencing.
12 BACKGROUND
13 {5} At approximately midnight on February 3, 2012, Defendant was driving his
14 pickup truck east on 14th Street in Clovis, New Mexico. He was accompanied by a
15 female passenger. At the same time, New Mexico State Police Officer Noe Alvarado
16 was on patrol in Clovis and observed Defendant’s vehicle cross the center line near
17 the intersection of 14th Street and Hinkle Street. Officer Alvarado initiated a traffic
18 stop and requested that Defendant provide his driver’s license and vehicle
19 information. When Defendant only produced his driver’s license, Officer Alvarado
2
1 requested that Defendant step out of the vehicle. Officer Alvarado and Defendant
2 walked to the front of the patrol vehicle. Officer Alvarado conducted a warrant check,
3 which came back negative. Officer Alvarado then walked back to Defendant’s vehicle
4 and requested that the passenger look for the insurance and registration documents
5 for the vehicle. The passenger complied by opening the center console. When she did
6 so, Officer Alvarado observed a glass pipe similar to those used to ingest
7 methamphetamine. Officer Alvarado requested that the passenger exit the vehicle and,
8 following a brief discussion, allowed her to depart. Officer Alvarado placed
9 Defendant under arrest for possession of drug paraphernalia. Officer Alvarado then
10 removed a pack of cigarettes from Defendant’s shirt pocket. While handling the
11 cigarettes, Officer Alvarado noticed a clear plastic bag containing a crystallized
12 substance. Subsequent laboratory testing revealed that the substance was
13 methamphetamine.
14 {6} Defendant’s jury trial was conducted on March 27, 2014. Defendant’s trial
15 counsel did not file a motion to suppress the paraphernalia or drugs seized by Officer
16 Alvarado or object to the admission of this evidence. Defendant’s trial counsel
17 instead moved for a directed verdict as to the possession of drug paraphernalia
18 charge, arguing that the State failed to make a prima facie case that Defendant
19 possessed the pipe. Defendant’s trial counsel also argued that, because the discovery
3
1 of the methamphetamine resulted from a post-arrest search, the possession of a
2 controlled substance charge should be dismissed. The district court denied these
3 motions.
4 {7} Against the advice of counsel, Defendant testified on his own behalf. In doing
5 so, Defendant hoped to relay certain information to the jury including that (1) his
6 passenger was in control of his cigarettes, soda, and cell phone while he was driving;
7 (2) he submitted a clean urine sample at the Curry County Adult Detention Center
8 after his arrest; and (3) he is physically unable to use the pipe at issue. Defendant’s
9 trial counsel initially declined to engage Defendant in these areas based upon her
10 belief that doing so would subject Defendant to expansive questioning by the State.
11 While in recess and outside the presence of the jury, a discussion took place during
12 which the district court considered Defendant’s ability, under the rules of evidence,
13 to offer additional testimony on the three topics. The district court allowed Defendant
14 to resume his testimony but refused to allow Defendant to discuss his urinalysis
15 results, stating, “I won’t allow anything about . . . what prior convictions you’ve
16 had[.]”
17 {8} Defendant was convicted of all charges. This appeal resulted.
4
1 INEFFECTIVE ASSISTANCE OF COUNSEL
2 {9} A criminal defendant’s right to effective assistance of counsel is guaranteed by
3 the Sixth Amendment to the United States Constitution. State v. Mosley, 2014-
4 NMCA-094, ¶ 18, 335 P.3d 244. Defendant argues that his trial counsel’s failure to
5 move to suppress the pipe and methamphetamine on the grounds that Officer
6 Alvarado conducted an illegal search constituted ineffective assistance of counsel.
7 We review Defendant’s claim of ineffective assistance of counsel de novo. State v.
8 Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.
9 {10} A defendant is entitled to an evidentiary hearing on his or her ineffective
10 assistance claim “only when the record on appeal establishes a prima facie case of
11 ineffective assistance of counsel.” State v. Herrera, 2001-NMCA-073, ¶ 35, 131
12 N.M. 22, 33 P.3d 22. A defendant makes a prima facie case of ineffective assistance
13 of counsel by showing “(1) that defense counsel’s performance fell below the
14 standard of a reasonably competent attorney, and (2) that due to the deficient
15 performance, the defense was prejudiced.” Mosley, 2014-NMCA-094, ¶ 19
16 (alteration, internal quotation marks, and citation omitted). We refer to the prongs of
17 this test as “the reasonableness prong and the prejudice prong.” Patterson v.
18 LeMaster, 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21 P.3d 1032.
5
1 The Reasonableness Prong
2 {11} When a defendant’s ineffective assistance of counsel claim is based upon trial
3 counsel’s failure to move to suppress evidence, he or she “must establish that the facts
4 support the motion to suppress and that a reasonably competent attorney could not
5 have decided that such a motion was unwarranted.” Mosley, 2014-NMCA-094, ¶ 20
6 (internal quotation marks and citation omitted).
7 {12} Defendant argues that, once Officer Alvarado removed him from the vehicle,
8 additional efforts to locate the insurance and registration documents within the
9 vehicle constituted an illegal search. This legal argument requires analysis under our
10 search and seizure jurisprudence.
11 {13} As discussed above, after initiating a traffic stop, Officer Alvarado requested
12 that Defendant provide his driver’s license, registration, and proof of insurance. When
13 Defendant only provided his driver’s licence, Officer Alvarado requested that
14 Defendant exit the vehicle. After several minutes, Officer Alvarado returned to
15 Defendant’s vehicle and requested that the passenger look for the insurance and
16 registration documents for the vehicle. The passenger then opened the center console,
17 revealing the methamphetamine pipe inside. Defendant was not under arrest at the
18 time when Officer Alvarado returned to Defendant’s vehicle.
6
1 {14} The State argues on appeal that Officer Alvarado’s conduct did not constitute
2 a search because drivers do not have a reasonable expectation of privacy in insurance
3 and registration documents. See State v. Reynolds, 1995-NMSC-008, ¶ 12, 119 N.M.
4 383, 890 P.2d 1315 (“[I]ndividuals have no legitimate subjective expectation of
5 privacy in their license, registration, or insurance documents when they are operating
6 a motor vehicle and an officer requests to see such documents.”). The State’s
7 argument expands Reynolds beyond its intended meaning in that, regardless of a law
8 enforcement officer’s right to request insurance and registration documents, the
9 owner of a vehicle has a reasonable expectation of privacy within the interior of the
10 vehicle. See New York v. Class, 475 U.S. 106, 114-15 (1986) (“[A] car’s interior as
11 a whole is nonetheless subject to Fourth Amendment protection from unreasonable
12 intrusions by the police.”); State v. Van Dang, 2005-NMSC-033, ¶ 7, 138 N.M. 408,
13 120 P.3d 830 (“Generally, one who owns, controls, or lawfully possesses property has
14 a legitimate expectation of privacy.”). Given this reasonable expectation of privacy,
15 Defendant’s failure to produce the insurance and registration documents for the
16 vehicle did not entitle Officer Alvarado to search the closed center console of the
17 vehicle for such paperwork without a warrant.
18 {15} In State v. Rowell, our Supreme Court reaffirmed New Mexico’s general rule
19 that, “absent a valid exception to the warrant requirement . . . a warrant is required for
7
1 a search of an automobile under Article II, Section 10 of the New Mexico
2 Constitution.” 2008-NMSC-041, ¶ 1, 144 N.M. 371, 188 P.3d 95. These exceptions
3 include searches incident to arrest, exigent circumstances, hot pursuit, consent,
4 inventory searches, open field, and plain view. State v. Weidner, 2007-NMCA-063,
5 ¶ 6, 141 N.M. 582, 158 P.3d 1025. The term “exigent circumstances” is defined as
6 “an emergency situation requiring swift action to prevent imminent danger to life or
7 serious damage to property, or to forestall the imminent escape of a suspect or
8 destruction of evidence.” Id. (internal quotation marks and citation omitted).
9 Applying the facts of the case, it is clear that exceptions for search incident to arrest,
10 hot pursuit, consent, inventory searches, and open field are inapplicable.
11 {16} The State argues that exigent circumstances justified Officer Alvarado’s seizure
12 of the pipe once it came into plain view. See Rowell, 2008-NMSC-041, ¶ 29
13 (affirming “the notion that the Constitution [does not] prohibit[] the officer from
14 choosing to secure the evidence immediately, given the realistic danger that someone
15 might remove the car or the drug evidence in the interim”). This result does not
16 logically follow from the facts before us.
17 {17} In Rowell, an officer conducted a traffic stop for speeding in a high school
18 parking lot. Id. ¶ 2. While interacting with the defendant, the officer observed a bag
19 of marijuana inside the defendant’s shirt pocket. Id. The officer reached into the
8
1 vehicle, removed the marijuana, and placed the defendant under arrest. Id. On direct
2 appeal, this Court held that the officer’s seizure of the marijuana was justified by
3 exigent circumstances given that “the marijuana was in plain view and . . . [i]t was
4 objectively clear that [the d]efendant could drive away with the marijuana.” State v.
5 Rowell, 2007-NMCA-075, ¶ 10, 141 N.M. 783, 161 P.3d 280, overruled on other
6 grounds by Rowell, 2008-NMSC-041, ¶ 36. The distinguishing feature of Rowell,
7 however, is that the marijuana that triggered both the seizure and the defendant’s
8 arrest was in plain view during the traffic stop.
9 {18} In this case, the contraband was not in plain view until Officer Alvarado
10 requested that the passenger open the center console and look for the insurance and
11 registration documents for the vehicle. The plain view doctrine does not justify a
12 seizure of contraband if the item at issue came into plain view only after an illegal
13 search. See State v. Warsaw, 1998-NMCA-044, ¶ 20, 125 N.M. 8, 956 P.2d 139 (“The
14 plain view doctrine refers to a seizure of evidence discovered during an intrusion that
15 has a prior justification.”).
16 {19} Nothing in the evidence indicates that Officer Alvarado believed that
17 Defendant’s passenger had authority to consent to a search of the vehicle. See State
18 v. Cline, 1998-NMCA-154, ¶ 17, 126 N.M. 77, 966 P.2d 785 (holding that actual
19 authority to consent to a search must be given by “someone who is clothed with
9
1 common authority or possesses some other sufficient relationship concerning the
2 premises in question” (internal quotation marks and citation omitted)); see also State
3 v. Celusniak, 2004-NMCA-070, ¶ 20, 135 N.M. 728, 93 P.3d 10 (“Under the New
4 Mexico Constitution, there is no doctrine of ‘apparent authority’ that allows a person
5 without actual authority to consent to the search of personal or real property.”). As
6 such, Officer Alvarado’s request that the passenger do so constituted a warrantless
7 search. See United States v. Poe, 556 F.3d 1113, 1123 (10th Cir. 2009) (“[I]n some
8 cases a search by a private citizen may be transformed into a governmental search
9 implicating the Fourth Amendment if the government coerces, dominates or directs
10 the actions of a private person conducting the search or seizure.” (internal quotation
11 marks and citation omitted)). Because no warrant exception justified the search, the
12 evidence recovered was subject to suppression at trial.
13 {20} After recovering the methamphetamine pipe, Officer Alvarado placed
14 Defendant under arrest. Officer Alvarado then discovered the methamphetamine
15 located in Defendant’s pack of cigarettes pursuant to a search incident to arrest.
16 Accepting the above analysis as valid, the “fruit of the poisonous tree” doctrine would
17 subject this evidence to suppression at trial. See State v. Monteleone, 2005-NMCA-
18 129, ¶ 16, 138 N.M. 544, 123 P.3d 777 (“The fruit of the poisonous tree doctrine bars
10
1 the admission of legally obtained evidence derived from past police illegalities.”
2 (alteration, internal quotation marks, and citation omitted)).
3 {21} At the close of the State’s case, Defendant’s trial counsel moved for directed
4 verdicts on Defendant’s possession of a controlled substance and possession of drug
5 paraphernalia charges. Defendant’s trial counsel argued generally that the case
6 presents “a set of facts that does not lend itself to allow all of these charges to go in
7 front of the jury[,]” and specifically that “if [the passenger] had not opened that
8 console, we would not be here today, because that pipe wouldn’t have been
9 discovered.” In the same vein, Defendant’s trial counsel subsequently argued that
10 “but for then, the discovery of that pipe, [Defendant] would not have been placed
11 under arrest. And but for then, the discovery of that pipe, and [Defendant’s]
12 subsequent arrest, then this other item that we have before us . . . would not be in
13 evidence in this case. There would be no case. We would not be here[.]” Given these
14 arguments, the directed verdict motions made on Defendant’s behalf appear to be
15 nothing more than belated efforts to suppress the evidence against Defendant. As
16 justification for her decision not to move to suppress the evidence against Defendant,
17 Defendant’s trial counsel stated “This is a situation where you don’t know exactly
18 what the testimony is going to be, and you don’t know what the evidence is going to
19 show, or the weight of it, until you actually hear the testimony at trial.” We are
11
1 unconvinced. See Rule 5-503(C) NMRA (providing for “discovery regarding any
2 matter, not privileged, which is relevant to the offense charged” in criminal cases).
3 {22} A motion to suppress and a motion for a directed verdict are not functionally
4 equivalent. Compare Rule 5-212(B) NMRA (“A person aggrieved by a confession,
5 admission or other evidence may move to suppress such evidence.”), with Rule 5-
6 607(K) NMRA (“[O]ut of the presence of the jury, the court shall determine the
7 sufficiency of the evidence, whether or not a motion for directed verdict is made[.]”).
8 A directed verdict is appropriate if there is no legally sufficient evidentiary basis for
9 a reasonable jury to rule in favor of the non-moving party. See State v. Baca, 2015-
10 NMSC-021, ¶ 31, 352 P.3d 1151 (“A directed verdict, technically appropriate only
11 in cases tried by a jury, requires a court to decide at the conclusion of the state’s case
12 whether the direct or circumstantial evidence admitted at trial, together with all
13 reasonable inferences to be drawn therefrom, will sustain a finding of guilt beyond
14 a reasonable doubt.” (internal quotation marks and citation omitted)). Because
15 Defendant’s trial counsel failed to move to suppress, or even to object to the
16 admission of, the evidence against Defendant, the admitted evidence weighs against
17 Defendant’s motion for a directed verdict. Defendant was charged with possession
18 of drug paraphernalia and possession of methamphetamine. The admitted evidence
19 included a methamphetamine pipe recovered from Defendant’s vehicle and
12
1 methamphetamine recovered from Defendant’s person. This evidence is sufficient to
2 overcome motions for directed verdicts as to either charge. See id. (discussing
3 considerations in granting or denying a motion for a directed verdict).
4 {23} We thus believe that a reasonably competent attorney would have moved to
5 suppress the evidence against Defendant under established principles of our search
6 and seizure jurisprudence. See Rowell, 2008-NMSC-041, ¶ 1 (holding that, absent a
7 valid exception, a warrant is required to search an automobile). A motion for a
8 directed verdict was not a strategically viable mechanism under the circumstances,
9 and we can discern no rationally-based reason that Defendant’s trial counsel would
10 forgo an effort to suppress the evidence at issue. Defendant has thus satisfied the
11 reasonableness prong of our ineffective assistance of counsel analysis.
12 The Prejudice Prong
13 {24} The State does not contest the prejudicial effect of the admitted evidence on
14 appeal. See State v. Garnenez, 2015-NMCA-022, ¶ 15, 344 P.3d 1054 (“We will not
15 address arguments on appeal that were not raised in the [briefing] and have not been
16 properly developed for review.”). In the absence of argument to the contrary, we note
17 that a trial counsel’s failure to offer a meritorious motion to suppress key evidence
18 may cause prejudice to the defendant. Mosley, 2014-NMCA-094, ¶ 30. In cases
19 involving a jury finding of guilt, we consider whether “trial counsel’s unreasonable
13
1 performance calls into doubt the reliability of the trial results.” Patterson, 2001-
2 NMSC-013, ¶ 18 (internal quotation marks and citation omitted).
3 {25} Defendant’s convictions are inextricably linked to the admission of the
4 paraphernalia and methamphetamine into evidence. Had this evidence been
5 suppressed, a legitimate question would exist as to whether the State could have
6 proven the charges against Defendant beyond a reasonable doubt. See State v. Munoz,
7 1998-NMSC-041, ¶ 9, 126 N.M. 371, 970 P.2d 143 (“In a criminal prosecution the
8 [s]tate has the burden of proving each element of the offense charged beyond a
9 reasonable doubt.” (internal quotation marks and citation omitted)); State v.
10 Gutierrez, 2005-NMCA-015, ¶ 23, 136 N.M. 779, 105 P.3d 332 (“The remedy for the
11 illegal search is suppressing all the fruits of the search, including the testimony
12 concerning its discovery.”). Defendant has thus satisfied the prejudice prong of our
13 ineffective assistance of counsel analysis.
14 Habeas Corpus Proceeding
15 {26} The State, quoting Herrera, argues that the proper mechanism for Defendant
16 to pursue his ineffective assistance of counsel claim is through habeas corpus
17 proceedings. 2001-NMCA-073, ¶ 37 (“When the record on appeal does not establish
18 a prima facie case of ineffective assistance of counsel, this Court has expressed its
19 preference for resolution of the issue in habeas corpus proceedings over remand for
14
1 an evidentiary hearing.”). The purpose of habeas corpus proceedings is “to protect a
2 person from being erroneously deprived of his or her rights.” Campos v. Bravo, 2007-
3 NMSC-021, ¶ 5, 141 N.M. 801, 161 P.3d 846. However, when, as here, the record is
4 sufficient to establish a prima facie case of ineffective assistance of counsel, the
5 appropriate remedy is a remand to the district court for an evidentiary hearing on the
6 defendant’s claim. See, e.g., Mosley, 2014-NMCA-094, ¶ 2 (holding that the
7 defendant made a prima facie case of ineffective assistance of counsel and remanding
8 for additional proceedings).
9 ADDITIONAL ISSUES
10 {27} As noted above, our analyses of Defendant’s arguments related to the
11 sufficiency of the evidence and evidentiary rulings are applicable only upon a
12 determination by the district court that Defendant did not, as a matter of law, receive
13 ineffective assistance in this matter.
14 Sufficiency of the Evidence
15 {28} Defendant argues that the State failed to prove possession of a controlled
16 substance or drug paraphernalia as required under Section 30-31-23 and Section 30-
17 31-25.1 respectively. Defendant’s argument lacks legal support given the facts of his
18 case.
15
1 {29} In reviewing the sufficiency of the evidence to support a conviction, our
2 appellate courts “must view the evidence in the light most favorable to the guilty
3 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence
4 in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,
5 998 P.2d 176. Our analysis on appeal considers all the evidence admitted by the
6 district court. State v. Post, 1989-NMCA-090, ¶ 22, 109 N.M. 177, 783 P.2d 487.
7 {30} Defendant was subject to conviction under Section 30-31-23 upon proof
8 beyond a reasonable doubt that (1) Defendant possessed methamphetamine and (2)
9 Defendant knew the substance was methamphetamine. UJI 14-3102 NMRA. Officer
10 Alvarado discovered methamphetamine in a pack of cigarettes removed from
11 Defendant’s shirt pocket. Defendant testified that, just prior to exiting the vehicle, his
12 passenger handed him the pack of cigarettes, which he accepted without inspection.
13 While Defendant’s testimony could support an acquittal, it “does not provide a basis
14 for reversal because the jury is free to reject [the d]efendant’s version of the facts.”
15 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
16 {31} Defendant was subject to conviction under Section 30-31-25.1(A) upon proof
17 beyond a reasonable doubt that (1) Defendant possessed a pipe and (2) the pipe was
18 used, or intended to be used, to ingest methamphetamine. See State v. Lopez, 2009-
19 NMCA-127, ¶ 33, 147 N.M. 364, 223 P.3d 361 (describing the elements associated
16
1 with the crime of possession of drug paraphernalia). Constructive possession is
2 sufficient to support a conviction. See State v. Phillips, 2000-NMCA-028, ¶ 8, 128
3 N.M. 777, 999 P.2d 421 (“Constructive possession exists when the accused has
4 knowledge of drugs or paraphernalia and exercises control over them.”). However,
5 “the mere presence of the contraband is not enough to support an inference of
6 constructive possession” if the accused did not have exclusive control over the area
7 searched. Id. When exclusive control is at issue, additional circumstances, including
8 the conduct of the accused, are required. Id. Officer Alvarado removed Defendant
9 from the vehicle but allowed his passenger to remain. Under these circumstances,
10 Defendant did not have exclusive control over the area where the paraphernalia was
11 discovered. Nevertheless, Defendant was the owner of the vehicle and
12 methamphetamine was discovered on his person. See State v. Lopez, 2009-NMCA-
13 044, ¶ 27, 146 N.M. 98, 206 P.3d 1003 (holding that ownership of a vehicle can
14 provide a link between the owner and contraband discovered within); State v. Garcia,
15 2005-NMSC-017, ¶¶ 15-22, 138 N.M. 1, 116 P.3d 72 (holding that constructive
16 possession of a firearm discovered in a vehicle was established when the defendant
17 was sitting on an ammunition clip that fit the firearm). From these two additional
18 circumstances, a reasonable jury could infer that Defendant had knowledge of and
17
1 control over the drug paraphernalia discovered in his vehicle. Sufficient evidence
2 supports Defendant’s convictions under Section 30-31-23 and Section 30-31-25.1(A).
3 Defendant’s Evidentiary Arguments
4 A. Exclusion of Defendant’s Proposed Testimony
5 {32} Defendant alleges that, in accordance with the terms of his probation, he
6 submitted a urine sample after his arrival at the Curry County Adult Detention Center.
7 Defendant further alleges that this sample was negative for controlled substances. On
8 appeal, Defendant argues that testimony related to his negative urinalysis results
9 could create a reasonable doubt as to his possession of drugs or drug paraphernalia
10 and that the district court’s exclusion of this testimony violated his constitutional
11 right to present a defense. See March v. State, 1987-NMSC-020, ¶ 11, 105 N.M. 453,
12 734 P.2d 231 (holding that a defendant’s right to a fair trial includes the right to
13 prepare and present a defense). It appears that the district court’s ruling was
14 predicated upon its application of Rule 11-404(B)(1) NMRA. We do not discuss the
15 appropriateness of this ruling. Rather, we uphold the district court’s ruling if it is right
16 for any reason. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d
17 684 (“Under the right for any reason doctrine, we may affirm the district court’s order
18 on grounds not relied upon by the district court if those grounds do not require us to
18
1 look beyond the factual allegations that were raised and considered below.” (internal
2 quotation marks and citation omitted)).
3 {33} The State argues that the “right for any reason” doctrine applies because
4 Defendant’s proposed testimony related to his urinalysis results is subject to the rule
5 against hearsay. Hearsay is an out-of-court statement offered to prove the truth of the
6 matter asserted. Rule 11-801(C) NMRA. “An out-of-court statement is inadmissible
7 unless it is specifically excluded as non-hearsay under Rule 11-801(D) or falls within
8 a recognized exception in the rules of evidence, or is otherwise made admissible by
9 rule or statute.” State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64
10 P.3d 486 (citation omitted), overruled on other grounds by State v. Tollardo, 2012-
11 NMSC-008, 275 P.3d 110. The State asserts that Defendant’s proposed testimony
12 violated the rule against hearsay because (1) Defendant’s awareness of his test results
13 originated with an out-of-court statement and (2) the statement was intended to prove
14 the truth of the matter asserted—that he tested negative for controlled substances
15 following his arrest.
16 {34} In his reply brief, Defendant does not argue that any hearsay exception permits
17 the admission of his proposed testimony. See Rule 11-803 NMRA (describing types
18 of statements that are exceptions to the rule against hearsay). Nor does Defendant
19 argue that his proposed testimony constitutes non-hearsay. See Rule 11-801(D)
19
1 (describing types of statements that are not hearsay). Instead, Defendant argues that
2 our application of the “right for any reason” doctrine would be unfair because the
3 district court’s determination foreclosed all opportunity for Defendant to properly
4 introduce his urinalysis results. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128
5 N.M. 536, 994 P.2d 1154 (“This Court may affirm a district court ruling on a ground
6 not relied upon by the district court, but will not do so if reliance on the new ground
7 would be unfair to appellant.” (alteration, internal quotation marks, and citation
8 omitted)). Defendant’s right to prepare and present a defense is nevertheless limited
9 by the rules of evidence. See State v. Rosales, 2004-NMSC-022, ¶ 7, 136 N.M. 25,
10 94 P.3d 768 (“[A] defendant’s interest in presenting evidence may at times bow to
11 accommodate other legitimate interests in the criminal trial process. Specifically, state
12 rules of evidence do not abridge an accused’s right to present a defense so long as
13 they are not arbitrary or disproportionate to the purposes they are designed to serve.”
14 (internal quotation marks and citations omitted)).
15 {35} During the discussion that resulted in the district court’s exclusion of
16 Defendant’s proposed testimony, Defendant made several statements to the effect that
17 the jury needed to hear about his urinalysis results.1 No mention was made of any
1
18 Statements by Defendant that both indicate his intention to orally testify about
19 his urinalysis and support a hearsay analysis by this Court include: (1) “I wasn’t
20 allowed to testify your honor. . . . I wasn’t allowed to say the facts[.]”; (2) “I have
20
1 supporting documents or witnesses through which to admit Defendant’s proposed
2 testimony in a manner consistent with the rules of evidence. Given that the record
3 clearly indicates Defendant’s intention to orally testify that (1) he underwent
4 urinalysis after his arrest and (2) the results were negative for controlled substances,
5 our application of a hearsay analysis is not unfair to Defendant. We therefore uphold
6 the district court’s exclusion of Defendant’s proposed testimony under Rule 11-
7 801(C).
8 B. Improper Admission of Laboratory Results
9 {36} Defendant also argues on appeal that the district court improperly admitted
10 laboratory results at trial. But Defendant failed to object to this admission at trial, and
11 he does not argue fundamental error on appeal. “In order to preserve an issue for
12 appeal, a defendant must make a timely objection that specifically apprises the trial
13 court of the nature of the claimed error and invokes an intelligent ruling thereon.”
14 State v. Walters, 2007-NMSC-050, ¶ 18, 142 N.M. 644, 168 P.3d 1068 (internal
15 quotation marks and citation omitted). In the absence of preservation, we decline to
16 address Defendant’s argument on appeal. See Wolfley v. Real Estate Comm’n, 1983-
17 some facts I need to disclose in the open court and I want the jury to hear[.]”; and (3)
18 “The clean urinalysis, I want the jury to hear[.]”
21
1 NMSC-064, ¶ 5, 100 N.M. 187, 668 P.2d 303 (“[O]bjections will not be considered
2 when raised for the first time on appeal.”).
3 JUDGMENT AND SENTENCING
4 {37} At his June 24, 2014 sentencing hearing, Defendant was sentenced to six and
5 one-half years incarceration, with the final two and one-half years suspended. This
6 sentence was formalized in the district court’s sentencing order, which was entered
7 on August 5, 2014 and provided, in pertinent part,
8 IT IS THEREFORE ORDERED that the defendant be committed
9 to the Department of Corrections for a term of five and one half (5 1/2)
10 years, such term includes a four (4) year enhancement pursuant to the
11 Habitual Offender Act as to Count [One] and three hundred and sixty-
12 four (364) days as to Count [Two]. Further Count [Two] shall run
13 CONSECUTIVE to Count [One].
14 Defendant argues on appeal that the district court’s sentencing order caused the four-
15 year enhancement to be served consecutively to the one-year sentence for Count Two,
16 causing exposure to additional incarceration not imposed by the district court. This
17 argument is inconsistent with our reading of the sentencing order.
18 {38} In chronological order, the district court’s sentencing order (1) sentenced
19 Defendant to one and one-half years for Count One, (2) attached a four year
20 enhancement to Count One, and (3) sentenced Defendant to one year for Count Two,
21 to run consecutively to Count One. The sentencing order then suspended two and
22
1 one-half years incarceration in favor of two and one-half years of supervised
2 probation. Defendant is subject to a total of four years incarceration. The sentencing
3 order is not ambiguous and does not expose Defendant to unintended incarceration.
4 Defendant’s request for resentencing is denied.
5 CONCLUSION
6 {39} We affirm the district court’s rulings excluding evidence concerning
7 Defendant’s urinalysis after his arrest. We also affirm the admission of the laboratory
8 results of testing performed on the substance seized from him. We conclude that there
9 was sufficient evidence submitted to support his convictions. However, the admission
10 of certain inculpatory evidence against Defendant is subject to the district court’s
11 consideration of Defendant’s motion for dismissal or suppression based upon
12 ineffective assistance of counsel prior to and at trial. If the district court determines
13 that the State cannot overcome the prima facie finding of ineffectiveness detailed
14 above, the district court shall vacate its sentence and dismiss the matter with
15 prejudice.
16 {40} IT IS SO ORDERED.
17 ________________________________
18 JAMES J. WECHSLER, Judge
23
1 WE CONCUR:
2 ________________________________
3 MICHAEL D. BUSTAMANTE, Judge
4 ________________________________
5 M. MONICA ZAMORA, Judge
24