Certiorari Denied, July 13, 2010, No. 32,441
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-078
Filing Date: June 21, 2010
Docket No. 27,192
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PABLO DELGADO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Silvia Cano-Garcia, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} Defendant appeals his convictions for possession of cocaine and tampering with
evidence. On May 14, 2009, we issued an opinion affirming the convictions, State v.
Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828. The Supreme Court granted a
writ of certiorari, State v. Delgado, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43, and
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subsequently remanded this case to this Court after deciding issues related to the evidentiary
issues in State v. Aragon, 2010-NMSC-008, ¶¶ 9, 32-33, 147 N.M. 474, 225 P.3d 1280. In
that case, our Supreme Court held that (1) a forensic chemist’s report required the testimony
of the forensic chemist who prepared it to be admissible in evidence and (2) testimony
concerning the report by another forensic chemist, when the testifying forensic chemist did
not testify about his own opinions, violated the defendant’s right of confrontation.
{2} On remand, we decided this case on our summary calendar in a memorandum
opinion. Defendant has moved the Court, without objection from the State, to publish the
opinion in light of this Court’s May 14, 2009 published opinion. We grant the motion,
withdraw the memorandum opinion issued May 12, 2010, and substitute this opinion in its
stead. The facts of this case are fully set forth in the May 14, 2009 opinion.
{3} After remand, we proposed in a summary calendar notice to reverse and remand to
the district court for a new trial on the charges because of improperly admitted forensic
evidence. We addressed sufficiency of the evidence as it would grant Defendant greater
relief, but proposed to conclude that the evidence was sufficient. Both Defendant and the
State timely responded to our proposal. Having considered the arguments, we reverse and
remand for a new trial.
{4} In our notice, in response to Defendant’s contention that the district court erred in
admitting a forensic laboratory report prepared by Eric Young through the testimony of
Danielle Elenbaas, a forensic chemist who did not conduct the tests underlying the report,
we proposed to conclude that the report could not be admitted into evidence without Mr.
Young’s testimony to support it. See Aragon, 2010-NMSC-008, ¶ 19. We proposed to
conclude that the testimony of Ms. Elenbaas about that report was likewise inadmissible.
See id. ¶¶ 32-33. The State argues that the testimony of Ms. Elenbaas was sufficient to
conclude that she reached an independent conclusion based on her own review of the data
and results. We disagree. Ms. Elenbaas’s testimony was similar to Mr. Young’s testimony
in Aragon: an explanation regarding how the test was performed and approval of the testing
chemist’s results. We find nothing in Ms. Elenbaas’s testimony indicating that she relied on
her own analysis to arrive at her own conclusion. Rather, she was simply explaining her
approval of Mr. Young’s conclusion. It is not clear that she was stating her own opinion
based on the underlying data and Mr. Young’s notes, but rather relaying Mr. Young’s
opinion and stating her approval of it. We conclude that Ms. Elenbaas’s testimony regarding
Mr. Young’s opinion that what he tested was cocaine was improperly admitted.
{5} The State argues that, even if the report and testimony were improperly admitted, it
was harmless error. The State argues that the error was harmless because there was other
admissible evidence that the substance was cocaine. This evidence consisted of the
testimony of a police detective who performed a field test on the substance. This Court has
previously held that the State must prove the scientific reliability of a drug field test in order
for it to be admissible. State v. Morales, 2002-NMCA-052, ¶ 23, 132 N.M. 146, 45 P.3d
406. It does not appear that there was such proof in this case. Thus, we cannot rely on a
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field test of the substance to conclude that there was a disproportionate volume of
permissible evidence to support a finding that the substance was cocaine. We conclude that
the erroneous admission of the forensic report and testimony was not harmless.
{6} In our notice, we proposed to conclude that the evidence was sufficient to support
the conviction. See State v. Santillanes, 109 N.M. 781, 782, 790 P.2d 1062, 1063 (Ct. App.
1990) (noting that this Court addresses substantial evidence issues because finding that the
evidence was insufficient to support the conviction would afford a defendant greater relief).
Defendant’s response points us to evidence that is simply conflicting. It is for the jury to
resolve the conflicts in the evidence. State v. Lucero, 2010-NMSC-011, ¶¶ 8, 18, 147 N.M.
747, 228 P.3d 1167. Further, our review is for sufficient evidence to support the conviction,
not for whether the factfinder could have reached a different result. In re Ernesto M., Jr.,
1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. We conclude that the evidence
presented at the trial was sufficient for a reasonable jury to conclude that Defendant
possessed cocaine and that he discarded it intending to prevent his prosecution for such
possession. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176
(stating the standard of review for sufficiency of the evidence). Thus, Defendant is not
entitled to dismissal of the charges, but rather remand for a new trial.
{7} For the reasons stated herein and in the third notice of proposed disposition, we
reverse the convictions and remand for a new trial.
{8} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
CYNTHIA A. FRY, Chief Judge
____________________________________
LINDA M. VANZI, Judge
Topic Index for State v. Delgado, Docket No. 27,192
AE APPEAL AND ERROR
AE-RM Remand
CL CRIMINAL LAW
CL-CL Controlled Substances
CT CONSTITUTIONAL LAW
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CT-RF Right to Confrontation
EV EVIDENCE
EV-AT Authentication of Evidence
EV-AV Availability of Witness
EV-SC Scientific Evidence & Daubert Standard
EV-SS Substantial or Sufficient Evidence
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