State v. Lopez

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-044

Filing Date: March 17, 2009

Docket No. 27,078

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

GERARDO RAMOS LOPEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
J.C. Robinson, District Judge

Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Joseph P. Walsh, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant Gerardo Ramos Lopez appeals his convictions of possession with intent
to distribute marijuana (over 100 pounds) and conspiracy to commit possession with intent
to distribute marijuana (over 100 pounds). Border Patrol Agents observed Defendant driving
a red Ford Mustang in apparent tandem with a maroon Nissan in which police ultimately
found the drugs. At trial, there was testimony by a narcotics agent that Defendant owned the
Nissan. The agent’s testimony was based on her observations of a registration document in
the glove box of the Nissan and a printout of a registration check through the National Law

1
Enforcement system. On appeal, Defendant argues that the testimony was inadmissible
hearsay and also that the State failed to introduce the documents relied on by the agent. We
conclude that the district court committed reversible error in admitting the testimony in the
absence of the original documents or an explanation from the State justifying their
unavailability. As a result, we reverse Defendant’s convictions and remand for a new trial.

{2} We note that Defendant’s single point on appeal is that the State established an
essential element of the charges on which Defendant was convicted solely on this
inadmissible evidence and, therefore, in its absence the convictions were not supported by
sufficient evidence. The State argues that there was sufficient evidence to support the
convictions even without the evidence Defendant attacks as being erroneously admitted. The
manner in which the parties have phrased the issues on appeal, concentrating on sufficiency
of the evidence to convict, have the tendency to lead the reader astray because the
determinative issues are whether the court’s admission of the evidence was erroneous and,
if so, whether the error was harmless and therefore not reversible error.

BACKGROUND

{3} Hidalgo County in Southwest New Mexico, where Defendant was arrested, is a very
remote and sparsely populated area close to the Mexico-United States border. The town of
Hachita is about forty-five miles north of the Mexico-United States border port town of
Antelope Wells. To disrupt drug smuggling, United States Border Patrol Agents in Hachita
pay special attention to vehicles traveling to and from the border. The agents are familiar
with the people who live in the area and are familiar with the vehicles they drive.

{4} At trial, law enforcement witnesses testified about a common method of drug
smuggling activity by the use of vehicles to pick up drugs that have been carried across the
border on foot. When drugs enter the United States, it is not uncommon for the pickup
people to use two vehicles in the operation, driving together from a pickup area to a
distribution center. This cooperative operation is known in law enforcement as using
“tandem vehicles” and, as testified to in this case, involves one vehicle serving as a “load
vehicle” while the other functions as a decoy or “heat vehicle.” There are many different
factors that law enforcement agents consider in arriving at a suspicion of a tandem-vehicle
drug operation.

{5} On the morning of Defendant’s arrest, agents observed a red or maroon Nissan
followed by a red Mustang, traveling close together, both with Arizona license plates, and
with one occupant in each car. The cars appeared to be traveling together, they were not
familiar to the agents, and they headed south toward Antelope Wells. About two hours later,
Agent Michael Leyba observed the same two cars traveling together northbound, close to
Hachita. As Agent Leyba turned his patrol unit around, the Nissan, which was in front,
immediately sped off at a high rate of speed, while the Mustang “calmly drove ahead at . .
. normal highway speeds.” Agent Leyba radioed the circumstances to another agent and
stayed in radio contact with regard to the pursuit of the Nissan, while himself following the

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Mustang. After following the Mustang for about fifteen minutes, Agent Leyba activated his
emergency equipment and pulled over the Mustang.1 Upon running a radio check, Agent
Leyba learned that Defendant, who was driving the Mustang, was a resident alien with a
prior criminal charge. Agent Leyba had Defendant follow him to a nearby Border Patrol
station.

{6} Meanwhile, New Mexico State Police Officer George Lopez had spotted the Nissan
traveling over 100 miles an hour. After a pursuit and a failed attempt by Officer Daniel
Calderon to use a spike belt to stop the Nissan, Officer Lopez and Officer Calderon observed
the Nissan parked with the driver door open in front of a truck stop near Lordsburg, New
Mexico. The officers found large bundles of marijuana in the Nissan. The driver of the
Nissan was Jesus Arredondo, who was arrested after being escorted by a truck driver toward
Officer Lopez who had begun to look for the driver of the Nissan. Narcotics Agent Lisa
Diaz arrived at the location of the Nissan and questioned Arredondo. Arredondo told Agent
Diaz that the Nissan did not belong to him. In order to determine who owned the Nissan,
Agent Diaz ran a registration check through Arizona and the National Law Enforcement
System and also looked at the Arizona registration document inside the glove box in the
Nissan. Agent Diaz drove the Nissan to the Border Patrol station, and Arredondo was
apparently transported by another agent to the same location. Defendant and Arredondo
were ultimately transported from the Border Patrol station to the State Police office.

{7} While Defendant was being transported from the State Police office to jail, he noticed
the Nissan parked in front of the office and remarked that the Nissan did not belong to him.
With the assistance of the agent who transported Defendant to the office, Defendant
completed and signed a disclaimer of ownership form that requested name, social security
number, birth date, driver’s license, and address.

{8} During trial, Agent Diaz was permitted to testify, over objection, that a printout of
the registration check received from dispatch and the registration she saw in the glove box
of the Nissan indicated that Defendant was the owner of the Nissan. The agent testified that
the biographical information on Defendant’s disclaimer was the same as that included in the
printout and the same as that on the registration in the glove box. The disclaimer was
admitted into evidence, but neither the printout nor the registration documents were
introduced in evidence during trial.

DISCUSSION

{9} We first address the State’s claims that particular arguments made on appeal were
not properly preserved below. We then discuss Defendant’s arguments that Agent Diaz’s
testimony was erroneously admitted, followed by a discussion regarding the State’s
argument that, even without the challenged testimony, there was sufficient evidence to

1
The sufficiency of cause for the stop is not an issue in this case.

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support Defendant’s convictions. Finally, because we reverse Defendant’s convictions, we
conduct a sufficiency-of-the-evidence analysis in order to determine whether the case should
be retried or dismissed.

Preliminary Preservation Issues

{10} Before we reach the merits of this case, we discuss two preliminary preservation
issues. The first issue is whether an objection was made in the district court by defense
counsel about the admission of testimony as to the contents of both the printout and the
registration document found in the glove box of the Nissan. The State asserts that defense
counsel only objected to Agent Diaz’s testimony regarding the registration document in the
Nissan and not the registration-check printout that she received from dispatch. We disagree.
At trial, Agent Diaz testified that she established ownership of the Nissan based on “a
registration from the State of Arizona inside the car and also a registration check through the
State of Arizona, through the National Law Enforcement system [that] was ran [sic].” When
the district court asked Agent Diaz who owned the car, defense counsel approached the
bench and objected to the admission of the evidence by stating: “I would like some
foundation on that. I haven’t seen these documents that she’s referring to.” The court
recessed for lunch after asking “We don’t have these documents?” When the trial resumed,
defense counsel approached and stated:

Well, what I would ask is maybe if on the record, so that I don’t have to
interrupt [opposing counsel] while [the agent is] testifying, I’d like some
objection with regard to the evidence on the registration and [Defendant’s]
name on the registration of the car, the Nissan and basically I’d object to the,
basically, just because, it’s double hearsay, it’s hearsay one from the
document and two from what was on the document. What she saw, you
know, so I mean, based on hearsay, it was based on the fact that we don’t
have the documents[.]

The court allowed the State to ask Agent Diaz whose name was on the registration that she
found in the glove box, and defense counsel once again objected “with regard to hearsay and
double hearsay that the documents were not disclosed.” We conclude that the issue was
preserved for appeal as to both documents since the district court had the “opportunity to
consider the merits of, or to rule intelligently on, the argument [the] defendant now puts
before us.” State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986).

{11} The second preservation issue relates to the specificity of defense counsel’s objection
as to which rule of evidence precluded the admission of the testimony about the contents of
the documents. On appeal, Defendant argues in his brief in chief that admission of the
testimony about the contents of the writings, without production of the actual documents,
violated the best-evidence rule. See Rules 11-1002, 11-1004 NMRA. In its answer brief,
the State does not object to Defendant’s best-evidence rule argument on the ground the
argument was not preserved. This Court nevertheless asked the parties to address this issue

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in oral argument. While defense counsel’s objection at trial was not as specific as it might
have been, he did point out that the testimony concerned what was on the documents and that
the documents were not disclosed or produced, and he did request foundation. We conclude
that this objection was enough to alert the district court that an objection was being made to
testimony that defense counsel believed required secondary evidence in violation of the best-
evidence rule. See Frost v. Markham, 86 N.M. 261, 265, 522 P.2d 808, 812 (1974) (holding
that an objection demanding production of a document, when no showing of unavailability
of the document had been made, sufficiently informed the court that the objection was being
made as to proof of content in violation of the best-evidence rule); State v. Guthrie, 2009-
NMCA-___, ¶ 13, ___ N.M. ___, ___ P.3d ___ (No. 27,022, filed Jan. 26, 2009) (holding
that the defendant preserved a due process argument despite the fact that his “argument
could have been made more artfully”). We conclude that Defendant properly preserved his
objection to evidence based on violation of the best-evidence rule.

Erroneous Admission of Agent Diaz’s Testimony About Ownership of the Nissan

{12} We review claimed error in the admission of evidence for abuse of discretion. State
v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995); Leigh v. Vill. of Los Lunas, 2005-
NMCA-025, ¶ 19, 137 N.M. 119, 108 P.3d 525. “An abuse of discretion occurs when the
ruling is clearly against the logic and effect of the facts and circumstances of the case.”
Woodward, 121 N.M. at 4, 908 P.2d at 234 (internal quotation marks and citation omitted).
“We cannot say the trial court abused its discretion by its ruling unless we can characterize
it as clearly untenable or not justified by reason.” Id. (internal quotation marks and citation
omitted).

{13} While Defendant and the State extensively argue the admissibility of testimony under
the hearsay rule as to the content of documents not introduced at trial, the main and
determinative evidentiary issue in this case is not hearsay. Rather, it is the best-evidence
rule. See Rules 11-1002, 11-1004. The best-evidence rule applies when the contents of a
writing are at issue but the original document is not introduced into evidence. See Rule 11-
004; see also Sun Vineyards, Inc. v. Luna County Wine Dev. Corp., 107 N.M. 524, 528, 760
P.2d 1290, 1294 (1988) (stating that a document is the best evidence of its contents).

{14} Pursuant to Rule 11-004, the State was required to either produce the original
writings or explain why they were unavailable. See Rule 11-1004 (providing that the
original is not required and other evidence of the contents of a writing is admissible if the
original was lost or destroyed, not obtainable, in possession of opponent, or not closely
related to a controlling issue); Palatine Ins. Co. v. Santa Fe Mercantile Co., 13 N.M. 241,
253, 82 P. 363, 364 (1905) (holding that the evidence of the contents of a printed offer of
reward for apprehension and conviction of the person who set a fire was inadmissible in the
absence of any showing as to why the original offer was not produced); Phillips v. State, 597
P.2d 456, 462 (Wyo. 1979) (holding that error was committed in allowing a witness to testify
as to the contents of a teletyped report of registration without introduction into evidence of
the message itself). Here, the documents referred to by Agent Diaz were not introduced at

5
trial, and the State provided no explanation as to availability of the documents. Accordingly,
based on the best-evidence rule, the district court erred in admitting the testimony of Agent
Diaz with regard to these documents.

{15} Defendant contends that without the erroneously admitted evidence, the remaining
evidence was insufficient to convict Defendant. Defendant’s approach is to argue that the
case must be reversed because without Agent Diaz’s testimony relating to ownership there
was insufficient evidence to establish the essential elements of the crimes. We reject this
approach as a basis for reversal of Defendant’s convictions. Assuming that the evidence was
erroneously admitted, the issue for reversal is whether the admission of the evidence of
ownership was prejudicial because it likely contributed to the jury’s verdict or, instead, was
not prejudicial because it constituted harmless error. See State v. Stampley, 1999-NMSC-
027, ¶ 38, 127 N.M. 426, 982 P.2d 477 (placing the burden on the complaining party to
demonstrate that the erroneous admission or exclusion of evidence was prejudicial in order
to obtain a reversal of the lower court’s evidentiary ruling). Nevertheless, the State expends
most of its answer brief resources responding to Defendant’s sufficiency argument as though
this were a substantial evidence case. As we indicate later in this opinion, we discuss the
State’s position on sufficiency, but treat it in essence as a harmless error argument. We note
that nowhere in the State’s brief does the State respond to Defendant’s best-evidence rule
argument. We further note that in addressing whether the agent’s testimony was
inadmissible hearsay, the State makes a limited argument that the testimony regarding the
registration documents, if inadmissible, nevertheless “constituted harmless error because the
evidence was cumulative,” in that it “merely duplicated the evidence obtained from the
National Law Enforcement system check” along with other evidence. Although not
specifically argued in its answer brief, in oral argument the State took the position that if the
testimony about the contents of the two documents was erroneously admitted, the admission
was harmless because the remaining evidence of guilt was overwhelming.

The State’s Sufficiency-of-Evidence Response

{16} In its answer brief, the State argues that the tandem-vehicle evidence alone, without
the testimony of Agent Diaz as to the ownership of the Nissan, sufficiently established that
Defendant shared Arredondo’s intent of smuggling the marijuana for distribution and that
Defendant was in constructive possession of the drugs. The State further argues that
Defendant manifested his intent by actively participating as a scout vehicle for Arredondo,
which would support a conviction of possession under an accessory theory.

{17} To support its position, the State relies heavily on a substantial evidence case in the
Tenth Circuit, United States v. Isaac-Sigala, 448 F.3d 1206 (10th Cir. 2006), to show that
evidence of tandem-vehicle activity can be sufficient to convict. Isaac-Sigala is not
applicable because it is based entirely on whether substantial evidence supported the verdict
and not on whether evidence was erroneously admitted resulting in reversible error. Id. at
1208. Furthermore, the evidence in Isaac-Sigala clearly established that the driver of the
scout van knew the contents of the load van, the evidence had nothing to do with the

6
defendant as the owner of either vehicle, and the defendant conceded his connection with
the load van. Id. at 1211, 1212. Despite the confusing approach taken by Defendant in his
brief in chief by arguing sufficiency of the evidence, the State’s approach is not useful and
does not constitute a persuasive response to whether the district court in the present case
committed reversible error. We do not fully discount the State’s argument, however,
because we construe it to assert that the error, if any, in admitting Agent Diaz’s testimony
was harmless because other evidence presented was sufficient to support findings that
Defendant was in constructive possession of the drugs as an accessory and that Defendant
conspired to possess the drugs.

{18} “For an error to be deemed harmless, there must be: (1) substantial evidence to
support the conviction without reference to the improperly admitted evidence, (2) such a
disproportionate volume of permissible evidence that, in comparison, the amount of
improper evidence will appear so minuscule that it could not have contributed to the
conviction, and (3) no substantial conflicting evidence to discredit the State’s testimony.”
State v. Duffy, 1998-NMSC-014, ¶ 38, 126 N.M. 132, 967 P.2d 807 (internal quotation
marks and citation omitted).

{19} Defendant was convicted of possession with intent to distribute marijuana (over 100
pounds) and conspiracy to distribute marijuana (over 100 pounds). To obtain a conviction
for possession of marijuana, the State had to establish beyond a reasonable doubt
that: (1) Defendant had marijuana in his possession, (2) Defendant knew it was marijuana,
(3) Defendant intended to transfer the marijuana to another, and (4) this happened in New
Mexico on or about September 30, 2004. UJI 14-3104 NMRA. Proof of possession of
illegal drugs may be established by circumstantial as well as direct evidence. State v.
Barber, 2004-NMSC-019, ¶ 27, 135 N.M. 621, 92 P.3d 633. Possession may be actual or
constructive. State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989).

{20} There were no drugs found in the Mustang that Defendant was driving. However,
as indicated by the State, the jury may have convicted him for possession under a
constructive-possession theory or accessory liability. To be convicted of constructive
possession, exercise of control over the drugs is an essential element because neither a
person’s presence in the vicinity of nor knowledge of the existence or location of the drugs
is, by itself, possession. The district court gave the jury a constructive-possession jury
instruction that states:

A person is in possession of Marijuana when he knows it is on his
person or in his presence, and he exercises control over it.

Even if the substance is not in his physical presence, he is in
possession if he knows where it is, and he exercises control over it.

Two or more people can have possession of a substance at the same
time.

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 A person’s presence in the vicinity of the substance or his knowledge
of the existence or the location of the substance, is not, by itself, possession.

UJI 14-3130 NMRA.

{21} Ownership was a very important consideration at trial. The district court specifically
asked Agent Diaz, “And who was the owner of that car?” The State relied on the testimony
about ownership of the Nissan to show that Defendant had control over the marijuana.
During closing argument and precisely in the context of control over the marijuana, the
prosecutor told the jury that “[W]hat we have presented to you today is full proof that here
is a defendant before us today who is in possession in that he has exercised control . . . . The
automobile [is] in his name . . . . So, [he is] in physical control.” The prosecutor also used
the ownership evidence to argue that Defendant’s written disclaimer of ownership was not
credible. In describing the activity of Arredondo and Defendant, the prosecutor referred to
“Arredondo, driving a car, registered to [Defendant],” and then, a few moments later, in
reference to “all of the evidence in this particular case,” the prosecutor singled out “the way
it happened, . . . the methods of travel, . . . the jointness of it, Mr. Arredondo driving a car,
registered to [Defendant].” In rebuttal argument, the prosecutor referred to “that registration
document.” It is apparent, therefore, that the State relied on the testimony pertaining to the
ownership of the Nissan in order to establish control, an essential element of the crime under
a constructive-possession theory.

{22} The jury was also instructed under a theory of aiding or abetting/accessory to crime
liability and conspiracy to possess marijuana. For a possession with intent to distribute
conviction under an aiding or abetting theory, the State had to establish that: (1) Defendant
intended that the crime be committed, and (2) the crime was committed. UJI 14-2822
NMRA. “[A]n accessory must share the criminal intent of the principal[, which] can be
inferred from behavior which encourages the act or which informs the confederates that the
person approves of the crime after the crime has been committed.” State v. Carrasco, 1997-
NMSC-047, ¶ 7, 124 N.M. 64, 946 P.2d 1075 (citation omitted); State v. Brenn, 2005-
NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050 (“Intent is usually established by
circumstantial evidence.”). Our statute defines conspiracy as “knowingly combining with
another for the purpose of committing a felony.” NMSA 1978, § 30-28-2(A) (1979). To
obtain a conviction of conspiracy, the State had to establish beyond a reasonable doubt
that: (1) Defendant and another person by words or acts agreed together to commit
possession of marijuana with intent to distribute, and (2) Defendant and the other person
intended to commit possession of marijuana with intent to distribute. UJI 14-2810 NMRA.
“[C]ircumstantial evidence can be used to prove a conspiracy.” State v. Hernandez, 104
N.M. 268, 277-78, 720 P.2d 303, 312-13 (Ct. App. 1986).

{23} In addition to the prosecutor’s arguments set out earlier in this opinion, the
prosecutor described the joint plan as “going down to the isolated area, . . . operating in
tandem, operating . . . [a] decoy car to deflect focus of the law enforcement officers on the
load car.” The prosecutor goes on to state that “it’s early in the morning before the Border

8
Patrol station opens. . . . There’s two cars going down there. . . . [O]ne of the drivers,
Arredondo, driving a car, registered to this [D]efendant.” To further the joint-plan argument,
the prosecutor described how “the one car really jumps and runs when . . . Agent Leyba . .
. makes [a] U turn [to] get[] behind them,” and Defendant continues slowly in the Mustang
doing just “what he’s supposed to do,” that is distract law enforcement while the Nissan
speeds away. The prosecutor argued that the circumstances showed intent and that
Defendant helped and encouraged the commission of the crime and that Defendant conspired
with Arredondo to “work together and they by their actions . . . showed that there was an
agreement to commit this possession of marijuana with intent to distribute.” The State
claimed that Defendant manifested his intent by actively participating as a scout vehicle for
Arredondo which would support a conviction of possession under an accessory theory. On
appeal, the State also argues that the concerted action of the two drivers supports
Defendant’s conspiracy conviction.

{24} Without the testimony pertaining to the ownership of the Nissan, the only evidence
remaining was the tandem-vehicle activity testimony. However, that evidence alone in this
case paled in the face of evidence of the connection to the crime provided by the registration
document in the Nissan and the registration-check printout. See United States v. McMahon,
562 F.2d 1192, 1195-96 (10th Cir. 1977) (holding evidence of “lead car-load car” modus
operandi was insufficient to support smuggling of aliens and conspiracy convictions when
the defendant’s vehicle was in the vicinity of load vehicle, the vehicles had been on a road
that avoided the checkpoint, the vehicles were equipped with CB radios, the drivers were
brothers-in-law, and the defendant’s vehicle had turned around and was traveling south on
I-25 after the load vehicle was detained, because no incriminating contact with the smugglers
was shown and the circumstantial evidence created mere suspicion or insinuation of guilt,
which was not enough for a conviction).

{25} We conclude that the testimony of Agent Diaz with regard to the registration
documents was erroneously admitted, and it was significant, if not compelling, evidence of
Defendant’s connection to the crime; whereas the tandem-vehicle evidence alone was barely,
if at all, sufficient to support Defendant’s convictions. Therefore, under the Duffy harmless-
error analysis, we hold that the tandem-vehicle evidence was not of such a disproportionate
volume as to render the inadmissible evidence “so minuscule that it could not have
contributed to the conviction[s].” Duffy, 1998-NMSC-014, ¶ 38 (internal quotation marks
and citation omitted). Therefore, we reject the State’s sufficiency-of-evidence and apparent
harmless-error arguments.

{26} Establishing the ownership of the Nissan was necessary in this case to support
Defendant’s convictions of possession under either a constructive-possession or an
accessory-liability theory and to establish conspiracy to possess. We hold that the admission
of the testimony of Agent Diaz with regard to the registration documents, without
submission of the supporting documents or an explanation regarding unavailability of those
documents, constituted reversible error. We reverse Defendant’s convictions for possession
with intent to distribute and conspiracy to possess with intent to distribute.

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Retrial or Dismissal

{27} Defendant requests that we reverse his convictions and dismiss the case against him
with prejudice or, in the alternative, grant him a new trial. When determining whether a case
should result in dismissal or retrial, we must determine whether the evidence was sufficient
to support the convictions and in doing so, we consider all the evidence, including evidence
that was improperly admitted. State v. Post, 109 N.M. 177, 181, 783 P.2d 487, 491 (Ct. App.
1989). As previously discussed, ownership of the Nissan could provide a sufficient link
between Defendant and the drugs and could establish the elements necessary for Defendant’s
convictions of possession with intent to distribute and conspiracy. When evidence of
ownership of the Nissan that was improperly admitted is considered, it is apparent that there
was sufficient evidence to connect Defendant to the Nissan, in which the drugs were being
transported, and therefore sufficient evidence to support convictions for possession of
marijuana with intent to distribute and conspiracy to possess with intent to distribute. We
conclude that retrial is the appropriate remedy.

CONCLUSION

{28} We reverse Defendant’s convictions for possession with intent to distribute and
conspiracy to possess with intent to distribute and remand for a new trial.

{29} IT IS SO ORDERED.

JONATHAN B. SUTIN, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

RODERICK T. KENNEDY, Judge

Topic Index for State v. Lopez, No. 27,078

AE APPEAL AND ERROR
AE-FE Fundamental Error
AE-PA Preservation of Issues for Appeal

CL CRIMINAL LAW
CL-CL Controlled Substances

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EV EVIDENCE
EV-AE Admissibility of Evidence
EV-DO Documentary Evidence
EV-HR Hearsay Evidence
EV-SS Substantial or Sufficient Evidence

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