State v. Howl

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:37:09 2016.10.13
Certiorari Denied, September 12, 2016, No. S-1-SC-36038

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-084

Filing Date: July 14, 2016

Docket No. 34,033

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DAVID HOWL,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant David Howl was convicted in a jury trial of possession of a controlled
substance, contrary to NMSA 1978, Section 30-31-23 (2011); possession of drug
paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2001); failure to maintain
traffic lane, contrary to NMSA 1978, Section 66-7-317 (1978); and no proof of insurance,

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contrary to NMSA 1978, Section 66-5-229(C) (1998).

{2} Defendant argues on appeal that (1) insufficient evidence supported his convictions
for possession of a controlled substance and possession of drug paraphernalia, (2) the district
court’s exclusion of certain testimony violated his constitutional right to present a defense,
(3) evidence was improperly admitted, and (4) ineffective assistance of counsel prejudiced
his defense. In its answer brief, the State argues that Defendant’s failure to make a prima
facie case of ineffective assistance of counsel requires that Defendant request relief in a
habeas corpus proceeding.

{3} Defendant has made a prima facie case of ineffective assistance of counsel based
upon his trial counsel’s failure to move to suppress inculpatory evidence. Therefore, we
remand for a hearing on Defendant’s ineffective assistance of counsel claim and any further
proceedings necessitated by the district court’s determination on that issue. Because
Defendant has made a prima facie case of ineffective assistance of counsel, we decline to
accept the State’s habeas corpus argument. In the interest of judicial economy, we also
conclude that, should the result of Defendant’s ineffective assistance of counsel hearing be
unfavorable to him, (1) sufficient evidence supports Defendant’s convictions for possession
of a controlled substance and possession of drug paraphernalia and (2) neither of
Defendant’s evidentiary arguments requires reversal.

{4} Defendant further argues that a clerical error in the district court’s amended
judgment, sentence, and order determining habitual offender status (sentencing order)
resulted in exposure to a longer sentence than that imposed at Defendant’s sentencing
hearing. We disagree and deny Defendant’s request for resentencing.

BACKGROUND

{5} At approximately midnight on February 3, 2012, Defendant was driving his pickup
truck east on 14th Street in Clovis, New Mexico. He was accompanied by a female
passenger. At the same time, New Mexico State Police Officer Noe Alvarado was on patrol
in Clovis and observed Defendant’s vehicle cross the center line near the intersection of 14th
Street and Hinkle Street. Officer Alvarado initiated a traffic stop and requested that
Defendant provide his driver’s license and vehicle information. When Defendant only
produced his driver’s license, Officer Alvarado requested that Defendant step out of the
vehicle. Officer Alvarado and Defendant walked to the front of the patrol vehicle. Officer
Alvarado conducted a warrant check, which came back negative. Officer Alvarado then
walked back to Defendant’s vehicle and requested that the passenger look for the insurance
and registration documents for the vehicle. The passenger complied by opening the center
console. When she did so, Officer Alvarado observed a glass pipe similar to those used to
ingest methamphetamine. Officer Alvarado requested that the passenger exit the vehicle and,
following a brief discussion, allowed her to depart. Officer Alvarado placed Defendant under
arrest for possession of drug paraphernalia. Officer Alvarado then removed a pack of
cigarettes from Defendant’s shirt pocket. While handling the cigarettes, Officer Alvarado

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noticed a clear plastic bag containing a crystallized substance. Subsequent laboratory testing
revealed that the substance was methamphetamine.

{6} Defendant’s jury trial was conducted on March 27, 2014. Defendant’s trial counsel
did not file a motion to suppress the paraphernalia or drugs seized by Officer Alvarado or
object to the admission of this evidence. Defendant’s trial counsel instead moved for a
directed verdict as to the possession of drug paraphernalia charge, arguing that the State
failed to make a prima facie case that Defendant possessed the pipe. Defendant’s trial
counsel also argued that, because the discovery of the methamphetamine resulted from a
post-arrest search, the possession of a controlled substance charge should be dismissed. The
district court denied these motions.

{7} Against the advice of counsel, Defendant testified on his own behalf. In doing so,
Defendant hoped to relay certain information to the jury including that (1) his passenger was
in control of his cigarettes, soda, and cell phone while he was driving; (2) he submitted a
clean urine sample at the Curry County Adult Detention Center after his arrest; and (3) he
is physically unable to use the pipe at issue. Defendant’s trial counsel initially declined to
engage Defendant in these areas based upon her belief that doing so would subject
Defendant to expansive questioning by the State. While in recess and outside the presence
of the jury, a discussion took place during which the district court considered Defendant’s
ability, under the rules of evidence, to offer additional testimony on the three topics. The
district court allowed Defendant to resume his testimony but refused to allow Defendant to
discuss his urinalysis results, stating, “I won’t allow anything about . . . what prior
convictions you’ve had[.]”

{8} Defendant was convicted of all charges. This appeal resulted.

INEFFECTIVE ASSISTANCE OF COUNSEL

{9} A criminal defendant’s right to effective assistance of counsel is guaranteed by the
Sixth Amendment to the United States Constitution. State v. Mosley, 2014-NMCA-094, ¶ 18,
335 P.3d 244. Defendant argues that his trial counsel’s failure to move to suppress the pipe
and methamphetamine on the grounds that Officer Alvarado conducted an illegal search
constituted ineffective assistance of counsel. We review Defendant’s claim of ineffective
assistance of counsel de novo. State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204
P.3d 44.

{10} A defendant is entitled to an evidentiary hearing on his or her ineffective assistance
claim “only when the record on appeal establishes a prima facie case of ineffective
assistance of counsel.” State v. Herrera, 2001-NMCA-073, ¶ 35, 131 N.M. 22, 33 P.3d 22.
A defendant makes a prima facie case of ineffective assistance of counsel by showing “(1)
that defense counsel’s performance fell below the standard of a reasonably competent
attorney, and (2) that due to the deficient performance, the defense was prejudiced.” Mosley,
2014-NMCA-094, ¶ 19 (alteration, internal quotation marks, and citation omitted). We refer

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to the prongs of this test as “the reasonableness prong and the prejudice prong.” Patterson
v. LeMaster, 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21 P.3d 1032.

The Reasonableness Prong

{11} When a defendant’s ineffective assistance of counsel claim is based upon trial
counsel’s failure to move to suppress evidence, he or she “must establish that the facts
support the motion to suppress and that a reasonably competent attorney could not have
decided that such a motion was unwarranted.” Mosley, 2014-NMCA-094, ¶ 20 (internal
quotation marks and citation omitted).

{12} Defendant argues that, once Officer Alvarado removed him from the vehicle,
additional efforts to locate the insurance and registration documents within the vehicle
constituted an illegal search. This legal argument requires analysis under our search and
seizure jurisprudence.

{13} As discussed above, after initiating a traffic stop, Officer Alvarado requested that
Defendant provide his driver’s license, registration, and proof of insurance. When Defendant
only provided his driver’s licence, Officer Alvarado requested that Defendant exit the
vehicle. After several minutes, Officer Alvarado returned to Defendant’s vehicle and
requested that the passenger look for the insurance and registration documents for the
vehicle. The passenger then opened the center console, revealing the methamphetamine pipe
inside. Defendant was not under arrest at the time when Officer Alvarado returned to
Defendant’s vehicle.

{14} The State argues on appeal that Officer Alvarado’s conduct did not constitute a
search because drivers do not have a reasonable expectation of privacy in insurance and
registration documents. See State v. Reynolds, 1995-NMSC-008, ¶ 12, 119 N.M. 383, 890
P.2d 1315 (“[I]ndividuals have no legitimate subjective expectation of privacy in their
license, registration, or insurance documents when they are operating a motor vehicle and
an officer requests to see such documents.”). The State’s argument expands Reynolds beyond
its intended meaning in that, regardless of a law enforcement officer’s right to request
insurance and registration documents, the owner of a vehicle has a reasonable expectation
of privacy within the interior of the vehicle. See New York v. Class, 475 U.S. 106, 114-15
(1986) (“[A] car’s interior as a whole is nonetheless subject to Fourth Amendment protection
from unreasonable intrusions by the police.”); State v. Van Dang, 2005-NMSC-033, ¶ 7, 138
N.M. 408, 120 P.3d 830 (“Generally, one who owns, controls, or lawfully possesses property
has a legitimate expectation of privacy.”). Given this reasonable expectation of privacy,
Defendant’s failure to produce the insurance and registration documents for the vehicle did
not entitle Officer Alvarado to search the closed center console of the vehicle for such
paperwork without a warrant.

{15} In State v. Rowell, our Supreme Court reaffirmed New Mexico’s general rule that,
“absent a valid exception to the warrant requirement . . . a warrant is required for a search

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of an automobile under Article II, Section 10 of the New Mexico Constitution.” 2008-
NMSC-041, ¶ 1, 144 N.M. 371, 188 P.3d 95. These exceptions include searches incident to
arrest, exigent circumstances, hot pursuit, consent, inventory searches, open field, and plain
view. State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d 1025. The term
“exigent circumstances” is defined as “an emergency situation requiring swift action to
prevent imminent danger to life or serious damage to property, or to forestall the imminent
escape of a suspect or destruction of evidence.” Id. (internal quotation marks and citation
omitted). Applying the facts of the case, it is clear that exceptions for search incident to
arrest, hot pursuit, consent, inventory searches, and open field are inapplicable.

{16} The State argues that exigent circumstances justified Officer Alvarado’s seizure of
the pipe once it came into plain view. See Rowell, 2008-NMSC-041, ¶ 29 (affirming “the
notion that the Constitution [does not] prohibit[] the officer from choosing to secure the
evidence immediately, given the realistic danger that someone might remove the car or the
drug evidence in the interim”). This result does not logically follow from the facts before us.

{17} In Rowell, an officer conducted a traffic stop for speeding in a high school parking
lot. Id. ¶ 2. While interacting with the defendant, the officer observed a bag of marijuana
inside the defendant’s shirt pocket. Id. The officer reached into the vehicle, removed the
marijuana, and placed the defendant under arrest. Id. On direct appeal, this Court held that
the officer’s seizure of the marijuana was justified by exigent circumstances given that “the
marijuana was in plain view and . . . [i]t was objectively clear that [the d]efendant could
drive away with the marijuana.” State v. Rowell, 2007-NMCA-075, ¶ 10, 141 N.M. 783, 161
P.3d 280, overruled on other grounds by Rowell, 2008-NMSC-041, ¶ 36. The distinguishing
feature of Rowell, however, is that the marijuana that triggered both the seizure and the
defendant’s arrest was in plain view during the traffic stop.

{18} In this case, the contraband was not in plain view until Officer Alvarado requested
that the passenger open the center console and look for the insurance and registration
documents for the vehicle. The plain view doctrine does not justify a seizure of contraband
if the item at issue came into plain view only after an illegal search. See State v. Warsaw,
1998-NMCA-044, ¶ 20, 125 N.M. 8, 956 P.2d 139 (“The plain view doctrine refers to a
seizure of evidence discovered during an intrusion that has a prior justification.”).

{19} Nothing in the evidence indicates that Officer Alvarado believed that Defendant’s
passenger had authority to consent to a search of the vehicle. See State v. Cline, 1998-
NMCA-154, ¶ 17, 126 N.M. 77, 966 P.2d 785 (holding that actual authority to consent to a
search must be given by “someone who is clothed with common authority or possesses some
other sufficient relationship concerning the premises in question” (internal quotation marks
and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶ 20, 135 N.M. 728,
93 P.3d 10 (“Under the New Mexico Constitution, there is no doctrine of ‘apparent
authority’ that allows a person without actual authority to consent to the search of personal
or real property.”). As such, Officer Alvarado’s request that the passenger do so constituted
a warrantless search. See United States v. Poe, 556 F.3d 1113, 1123 (10th Cir. 2009) (“[I]n

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some cases a search by a private citizen may be transformed into a governmental search
implicating the Fourth Amendment if the government coerces, dominates or directs the
actions of a private person conducting the search or seizure.” (internal quotation marks and
citation omitted)). Because no warrant exception justified the search, the evidence recovered
was subject to suppression at trial.

{20} After recovering the methamphetamine pipe, Officer Alvarado placed Defendant
under arrest. Officer Alvarado then discovered the methamphetamine located in Defendant’s
pack of cigarettes pursuant to a search incident to arrest. Accepting the above analysis as
valid, the “fruit of the poisonous tree” doctrine would subject this evidence to suppression
at trial. See State v. Monteleone, 2005-NMCA-129, ¶ 16, 138 N.M. 544, 123 P.3d 777 (“The
fruit of the poisonous tree doctrine bars the admission of legally obtained evidence derived
from past police illegalities.” (alteration, internal quotation marks, and citation omitted)).

{21} At the close of the State’s case, Defendant’s trial counsel moved for directed verdicts
on Defendant’s possession of a controlled substance and possession of drug paraphernalia
charges. Defendant’s trial counsel argued generally that the case presents “a set of facts that
does not lend itself to allow all of these charges to go in front of the jury[,]” and specifically
that “if [the passenger] had not opened that console, we would not be here today, because
that pipe wouldn’t have been discovered.” In the same vein, Defendant’s trial counsel
subsequently argued that “but for then, the discovery of that pipe, [Defendant] would not
have been placed under arrest. And but for then, the discovery of that pipe, and
[Defendant’s] subsequent arrest, then this other item that we have before us . . . would not
be in evidence in this case. There would be no case. We would not be here[.]” Given these
arguments, the directed verdict motions made on Defendant’s behalf appear to be nothing
more than belated efforts to suppress the evidence against Defendant. As justification for her
decision not to move to suppress the evidence against Defendant, Defendant’s trial counsel
stated “This is a situation where you don’t know exactly what the testimony is going to be,
and you don’t know what the evidence is going to show, or the weight of it, until you
actually hear the testimony at trial.” We are unconvinced. See Rule 5-503(C) NMRA
(providing for “discovery regarding any matter, not privileged, which is relevant to the
offense charged” in criminal cases).

{22} A motion to suppress and a motion for a directed verdict are not functionally
equivalent. Compare Rule 5-212(B) NMRA (“A person aggrieved by a confession,
admission or other evidence may move to suppress such evidence.”), with Rule 5-607(K)
NMRA (“[O]ut of the presence of the jury, the court shall determine the sufficiency of the
evidence, whether or not a motion for directed verdict is made[.]”). A directed verdict is
appropriate if there is no legally sufficient evidentiary basis for a reasonable jury to rule in
favor of the non-moving party. See State v. Baca, 2015-NMSC-021, ¶ 31, 352 P.3d 1151 (“A
directed verdict, technically appropriate only in cases tried by a jury, requires a court to
decide at the conclusion of the state’s case whether the direct or circumstantial evidence
admitted at trial, together with all reasonable inferences to be drawn therefrom, will sustain
a finding of guilt beyond a reasonable doubt.” (internal quotation marks and citation

6
omitted)). Because Defendant’s trial counsel failed to move to suppress, or even to object
to the admission of, the evidence against Defendant, the admitted evidence weighs against
Defendant’s motion for a directed verdict. Defendant was charged with possession of drug
paraphernalia and possession of methamphetamine. The admitted evidence included a
methamphetamine pipe recovered from Defendant’s vehicle and methamphetamine
recovered from Defendant’s person. This evidence is sufficient to overcome motions for
directed verdicts as to either charge. See id. (discussing considerations in granting or denying
a motion for a directed verdict).

{23} We thus believe that a reasonably competent attorney would have moved to suppress
the evidence against Defendant under established principles of our search and seizure
jurisprudence. See Rowell, 2008-NMSC-041, ¶ 1 (holding that, absent a valid exception, a
warrant is required to search an automobile). A motion for a directed verdict was not a
strategically viable mechanism under the circumstances, and we can discern no rationally-
based reason that Defendant’s trial counsel would forgo an effort to suppress the evidence
at issue. Defendant has thus satisfied the reasonableness prong of our ineffective assistance
of counsel analysis.

The Prejudice Prong

{24} The State does not contest the prejudicial effect of the admitted evidence on appeal.
See State v. Garnenez, 2015-NMCA-022, ¶ 15, 344 P.3d 1054 (“We will not address
arguments on appeal that were not raised in the [briefing] and have not been properly
developed for review.”). In the absence of argument to the contrary, we note that a trial
counsel’s failure to offer a meritorious motion to suppress key evidence may cause prejudice
to the defendant. Mosley, 2014-NMCA-094, ¶ 30. In cases involving a jury finding of guilt,
we consider whether “trial counsel’s unreasonable performance calls into doubt the
reliability of the trial results.” Patterson, 2001-NMSC-013, ¶ 18 (internal quotation marks
and citation omitted).

{25} Defendant’s convictions are inextricably linked to the admission of the paraphernalia
and methamphetamine into evidence. Had this evidence been suppressed, a legitimate
question would exist as to whether the State could have proven the charges against
Defendant beyond a reasonable doubt. See State v. Munoz, 1998-NMSC-041, ¶ 9, 126 N.M.
371, 970 P.2d 143 (“In a criminal prosecution the [s]tate has the burden of proving each
element of the offense charged beyond a reasonable doubt.” (internal quotation marks and
citation omitted)); State v. Gutierrez, 2005-NMCA-015, ¶ 23, 136 N.M. 779, 105 P.3d 332
(“The remedy for the illegal search is suppressing all the fruits of the search, including the
testimony concerning its discovery.”). Defendant has thus satisfied the prejudice prong of
our ineffective assistance of counsel analysis.

Habeas Corpus Proceeding

{26} The State, quoting Herrera, argues that the proper mechanism for Defendant to

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pursue his ineffective assistance of counsel claim is through habeas corpus proceedings.
2001-NMCA-073, ¶ 37 (“When the record on appeal does not establish a prima facie case
of ineffective assistance of counsel, this Court has expressed its preference for resolution of
the issue in habeas corpus proceedings over remand for an evidentiary hearing.”). The
purpose of habeas corpus proceedings is “to protect a person from being erroneously
deprived of his or her rights.” Campos v. Bravo, 2007-NMSC-021, ¶ 5, 141 N.M. 801, 161
P.3d 846. However, when, as here, the record is sufficient to establish a prima facie case of
ineffective assistance of counsel, the appropriate remedy is a remand to the district court for
an evidentiary hearing on the defendant’s claim. See, e.g., Mosley, 2014-NMCA-094, ¶ 2
(holding that the defendant made a prima facie case of ineffective assistance of counsel and
remanding for additional proceedings).

ADDITIONAL ISSUES

{27} As noted above, our analyses of Defendant’s arguments related to the sufficiency of
the evidence and evidentiary rulings are applicable only upon a determination by the district
court that Defendant did not, as a matter of law, receive ineffective assistance in this matter.

Sufficiency of the Evidence

{28} Defendant argues that the State failed to prove possession of a controlled substance
or drug paraphernalia as required under Section 30-31-23 and Section 30-31-25.1
respectively. Defendant’s argument lacks legal support given the facts of his case.

{29} In reviewing the sufficiency of the evidence to support a conviction, our appellate
courts “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. Our analysis on
appeal considers all the evidence admitted by the district court. State v. Post, 1989-NMCA-
090, ¶ 22, 109 N.M. 177, 783 P.2d 487.

{30} Defendant was subject to conviction under Section 30-31-23 upon proof beyond a
reasonable doubt that (1) Defendant possessed methamphetamine and (2) Defendant knew
the substance was methamphetamine. UJI 14-3102 NMRA. Officer Alvarado discovered
methamphetamine in a pack of cigarettes removed from Defendant’s shirt pocket. Defendant
testified that, just prior to exiting the vehicle, his passenger handed him the pack of
cigarettes, which he accepted without inspection. While Defendant’s testimony could
support an acquittal, it “does not provide a basis for reversal because the jury is free to reject
[the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438,
971 P.2d 829.

{31} Defendant was subject to conviction under Section 30-31-25.1(A) upon proof beyond
a reasonable doubt that (1) Defendant possessed a pipe and (2) the pipe was used, or
intended to be used, to ingest methamphetamine. See State v. Lopez, 2009-NMCA-127, ¶ 33,

8
147 N.M. 364, 223 P.3d 361 (describing the elements associated with the crime of
possession of drug paraphernalia). Constructive possession is sufficient to support a
conviction. See State v. Phillips, 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d 421
(“Constructive possession exists when the accused has knowledge of drugs or paraphernalia
and exercises control over them.”). However, “the mere presence of the contraband is not
enough to support an inference of constructive possession” if the accused did not have
exclusive control over the area searched. Id. When exclusive control is at issue, additional
circumstances, including the conduct of the accused, are required. Id. Officer Alvarado
removed Defendant from the vehicle but allowed his passenger to remain. Under these
circumstances, Defendant did not have exclusive control over the area where the
paraphernalia was discovered. Nevertheless, Defendant was the owner of the vehicle and
methamphetamine was discovered on his person. See State v. Lopez, 2009-NMCA-044, ¶ 27,
146 N.M. 98, 206 P.3d 1003 (holding that ownership of a vehicle can provide a link between
the owner and contraband discovered within); State v. Garcia, 2005-NMSC-017, ¶¶ 15-22,
138 N.M. 1, 116 P.3d 72 (holding that constructive possession of a firearm discovered in a
vehicle was established when the defendant was sitting on an ammunition clip that fit the
firearm). From these two additional circumstances, a reasonable jury could infer that
Defendant had knowledge of and control over the drug paraphernalia discovered in his
vehicle. Sufficient evidence supports Defendant’s convictions under Section 30-31-23 and
Section 30-31-25.1(A).

Defendant’s Evidentiary Arguments

A. Exclusion of Defendant’s Proposed Testimony

{32} Defendant alleges that, in accordance with the terms of his probation, he submitted
a urine sample after his arrival at the Curry County Adult Detention Center. Defendant
further alleges that this sample was negative for controlled substances. On appeal, Defendant
argues that testimony related to his negative urinalysis results could create a reasonable
doubt as to his possession of drugs or drug paraphernalia and that the district court’s
exclusion of this testimony violated his constitutional right to present a defense. See March
v. State, 1987-NMSC-020, ¶ 11, 105 N.M. 453, 734 P.2d 231 (holding that a defendant’s
right to a fair trial includes the right to prepare and present a defense). It appears that the
district court’s ruling was predicated upon its application of Rule 11-404(B)(1) NMRA. We
do not discuss the appropriateness of this ruling. Rather, we uphold the district court’s ruling
if it is right for any reason. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181
P.3d 684 (“Under the right for any reason doctrine, we may affirm the district court’s order
on grounds not relied upon by the district court if those grounds do not require us to look
beyond the factual allegations that were raised and considered below.” (internal quotation
marks and citation omitted)).

{33} The State argues that the “right for any reason” doctrine applies because Defendant’s
proposed testimony related to his urinalysis results is subject to the rule against hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Rule

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11-801(C) NMRA. “An out-of-court statement is inadmissible unless it is specifically
excluded as non-hearsay under Rule 11-801(D) or falls within a recognized exception in the
rules of evidence, or is otherwise made admissible by rule or statute.” State v. McClaugherty,
2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486 (citation omitted), overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. The State asserts that
Defendant’s proposed testimony violated the rule against hearsay because (1) Defendant’s
awareness of his test results originated with an out-of-court statement and (2) the statement
was intended to prove the truth of the matter asserted—that he tested negative for controlled
substances following his arrest.

{34} In his reply brief, Defendant does not argue that any hearsay exception permits the
admission of his proposed testimony. See Rule 11-803 NMRA (describing types of
statements that are exceptions to the rule against hearsay). Nor does Defendant argue that
his proposed testimony constitutes non-hearsay. See Rule 11-801(D) (describing types of
statements that are not hearsay). Instead, Defendant argues that our application of the “right
for any reason” doctrine would be unfair because the district court’s determination
foreclosed all opportunity for Defendant to properly introduce his urinalysis results. See
Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (“This Court may
affirm a district court ruling on a ground not relied upon by the district court, but will not do
so if reliance on the new ground would be unfair to appellant.” (alteration, internal quotation
marks, and citation omitted)). Defendant’s right to prepare and present a defense is
nevertheless limited by the rules of evidence. See State v. Rosales, 2004-NMSC-022, ¶ 7,
136 N.M. 25, 94 P.3d 768 (“[A] defendant’s interest in presenting evidence may at times
bow to accommodate other legitimate interests in the criminal trial process. Specifically,
state rules of evidence do not abridge an accused’s right to present a defense so long as they
are not arbitrary or disproportionate to the purposes they are designed to serve.” (internal
quotation marks and citations omitted)).

{35} During the discussion that resulted in the district court’s exclusion of Defendant’s
proposed testimony, Defendant made several statements to the effect that the jury needed to
hear about his urinalysis results.1 No mention was made of any supporting documents or
witnesses through which to admit Defendant’s proposed testimony in a manner consistent
with the rules of evidence. Given that the record clearly indicates Defendant’s intention to
orally testify that (1) he underwent urinalysis after his arrest and (2) the results were negative
for controlled substances, our application of a hearsay analysis is not unfair to Defendant.
We therefore uphold the district court’s exclusion of Defendant’s proposed testimony under
Rule 11-801(C).

1
Statements by Defendant that both indicate his intention to orally testify about his
urinalysis and support a hearsay analysis by this Court include: (1) “I wasn’t allowed to
testify your honor. . . . I wasn’t allowed to say the facts[.]”; (2) “I have some facts I need to
disclose in the open court and I want the jury to hear[.]”; and (3) “The clean urinalysis, I
want the jury to hear[.]”

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B. Improper Admission of Laboratory Results

{36} Defendant also argues on appeal that the district court improperly admitted laboratory
results at trial. But Defendant failed to object to this admission at trial, and he does not argue
fundamental error on appeal. “In 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.” State v. Walters, 2007-NMSC-050, ¶ 18, 142
N.M. 644, 168 P.3d 1068 (internal quotation marks and citation omitted). In the absence of
preservation, we decline to address Defendant’s argument on appeal. See Wolfley v. Real
Estate Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M. 187, 668 P.2d 303 (“[O]bjections will not
be considered when raised for the first time on appeal.”).

JUDGMENT AND SENTENCING

{37} At his June 24, 2014 sentencing hearing, Defendant was sentenced to six and one-
half years incarceration, with the final two and one-half years suspended. This sentence was
formalized in the district court’s sentencing order, which was entered on August 5, 2014 and
provided, in pertinent part,

IT IS THEREFORE ORDERED that the defendant be committed to
the Department of Corrections for a term of five and one half (5 1/2) years,
such term includes a four (4) year enhancement pursuant to the Habitual
Offender Act as to Count [One] and three hundred and sixty-four (364) days
as to Count [Two]. Further Count [Two] shall run CONSECUTIVE to Count
[One].

Defendant argues on appeal that the district court’s sentencing order caused the four-year
enhancement to be served consecutively to the one-year sentence for Count Two, causing
exposure to additional incarceration not imposed by the district court. This argument is
inconsistent with our reading of the sentencing order.

{38} In chronological order, the district court’s sentencing order (1) sentenced Defendant
to one and one-half years for Count One, (2) attached a four year enhancement to Count One,
and (3) sentenced Defendant to one year for Count Two, to run consecutively to Count One.
The sentencing order then suspended two and one-half years incarceration in favor of two
and one-half years of supervised probation. Defendant is subject to a total of four years
incarceration. The sentencing order is not ambiguous and does not expose Defendant to
unintended incarceration. Defendant’s request for resentencing is denied.

CONCLUSION

{39} We affirm the district court’s rulings excluding evidence concerning Defendant’s
urinalysis after his arrest. We also affirm the admission of the laboratory results of testing
performed on the substance seized from him. We conclude that there was sufficient evidence

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submitted to support his convictions. However, the admission of certain inculpatory evidence
against Defendant is subject to the district court’s consideration of Defendant’s motion for
dismissal or suppression based upon ineffective assistance of counsel prior to and at trial.
If the district court determines that the State cannot overcome the prima facie finding of
ineffectiveness detailed above, the district court shall vacate its sentence and dismiss the
matter with prejudice.

{40} IT IS SO ORDERED.

____________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
M. MONICA ZAMORA, Judge

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