 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 29,860

10 CASEY M.,

11          Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Sandra A. Price, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Victoria Wilson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Jacqueline Cooper, Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 CASTILLO, Chief Judge.
 1        Casey M. (Child) was convicted of driving while intoxicated (DWI), driving

 2 without a license, and driving without proof of financial responsibility. On appeal,

 3 Child challenges only his conviction for DWI under NMSA 1978, Section 66-8-102

 4 (2008) (amended 2010). Child makes three arguments: (1) that he was not properly

 5 Mirandized and, therefore, his statements were inadmissible; (2) that the district court

 6 abused its discretion by allowing testimony about the Drug Recognition Expert (DRE)

 7 evaluation; and (3) that the district court violated Child’s right to confrontation in

 8 admitting a toxicology report into evidence through an analyst other than the one who

 9 conducted the test and prepared the report. We affirm the district court as to Child

10 being properly Mirandized and as to the admission of testimony about the DRE

11 evaluation. On Child’s confrontation issue, we hold that it was error for the district

12 court to admit the toxicology report; however, we hold that this error was harmless,

13 and we therefore uphold Child’s DWI conviction.

14 BACKGROUND

15        Child, who was a juvenile at the time of his adjudication, was charged by

16 delinquency petition on December 24, 2008, with DWI, driving without a license, and

17 driving without proof of financial responsibility for an incident that occurred on

18 August 24, 2008, at a DWI sobriety checkpoint. On the day of the incident, Deputy

19 Richard Marshall approached Child’s vehicle at the DWI checkpoint, and Child

                                              2
 1 exhibited signs of impairment, and he also had bloodshot, watery eyes. Deputy

 2 Marshall detected the odor of marijuana coming from the vehicle. The deputy

 3 requested Child’s license, registration, and insurance. Child could not produce a

 4 driver’s license, and the insurance card that Child provided had expired. Deputy

 5 Marshall then directed Child to pull into a parking lot in order to further investigate

 6 the deputy’s suspicions that Child was driving under the influence.

 7        At the secondary location, Deputy Marshall had Child perform three field

 8 sobriety tests. At this point in the investigation, Child told Deputy Marshall that he

 9 had been involved in a motorcycle accident a “couple of days” earlier and that he had

10 been prescribed Lortab in the emergency room. Child also admitted to Deputy

11 Marshall that he had smoked “two bowls” of marijuana, the last being thirty minutes

12 before arriving at the checkpoint and that he had also taken a muscle relaxer and

13 Lortab. After witnessing Child’s performance on the field sobriety tests, Deputy

14 Marshall concluded that it was unsafe for Child to drive, and the deputy arrested him.

15 Deputy Marshall testified that at the time of the arrest, he informed Child of the

16 Implied Consent Act, NMSA 1978, § 66-8-107 (1993). The testimony of Deputy

17 Marshall regarding advising Child of his Miranda rights is developed in Point I where

18 we consider this issue.

19        After being arrested, Child was taken to a hospital where his blood was drawn


                                              3
 1 by a nurse pursuant to Child’s consent under the Implied Consent Act. The results of

 2 Child’s blood test showed that he had marijuana and Darvon, a prescription pain

 3 medication, in his system. Child was then taken to the New Mexico State Police

 4 Office where Officer Micah Doering conducted the DRE evaluation. This evaluation

 5 of Child was digitally recorded in audio, and the facts regarding the recording are set

 6 forth in Points I and II because the handling of the recording is relevant to these two

 7 issues. During the evaluation, Child made several statements to Officer Doering,

 8 including that he was taking two prescription medications—a muscle relaxer and

 9 Lortab—and that he had smoked marijuana earlier in the day and about thirty minutes

10 before getting to the DWI checkpoint. After performing the DRE evaluation on Child,

11 Officer Doering concluded that Child was impaired to the point where he should not

12 be operating a motor vehicle.

13        On May 4, 2009, Child filed two separate pretrial motions. The motion to

14 suppress sought to suppress all statements made by Child to law enforcement officers

15 based on the failure to read Child his Miranda rights as required by State v. Javier M.,

16 2001-NMSC-030, ¶ 1, 131 N.M. 1, 33 P.3d 1. The motion to exclude sought to keep

17 out the DRE “testimony and reports of . . . Officer . . . Doering [and to] and to exclude

18 any mention of Officer Doering’s report or investigation” because the DRE evaluation

19 had been recorded, but it was not disclosed to the defense. The State filed responses


                                               4
 1 to both motions. The district court held a hearing on these motions on May 13, 2009,

 2 and the court indicated that it would grant the motions.          Before the order

 3 memorializing the court’s decision was entered, the State submitted a motion to

 4 reconsider because “[u]ntil recently, it was unknown to the State, including Officer

 5 Doering, whether any other electronic recording of the DRE [evaluation] existed,” but

 6 a video recording of Officer Doering’s DRE evaluation with Child was now available.

 7 The State also asserted that the video of the DRE evaluation indicates that Child was

 8 given Miranda warnings and that Child understood those rights. After discussing the

 9 content of the video with the prosecution and the defense, the district court

10 reconsidered its earlier ruling on the motion to suppress and ruled that Child’s

11 statements would be admissible. At trial, the jury found Child guilty of all three

12 charges. On appeal, Child only challenges his DWI conviction.

13 DISCUSSION

14 1.     Motion to Suppress

15        We understand Child’s argument to contain two parts. First, it appears that

16 Child’s basic position is that the district court erred in not suppressing Child’s

17 statements to Deputy Marshall and Officer Doering on the night of his arrest because

18 he was not properly advised of his Miranda rights. See Javier M., 2001-NMSC-030,

19 ¶ 1. “In reviewing a trial court’s denial of a motion to suppress, we observe the


                                             5
 1 distinction between factual determinations[,] which are subject to a substantial

 2 evidence standard of review and application of law to the facts[,] which is subject to

 3 de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442

 4 (second alteration in original) (internal quotation marks and citation omitted). “We

 5 view the facts in the manner most favorable to the prevailing party and defer to the

 6 district court’s findings of fact if substantial evidence exists to support those

 7 findings.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “The

 8 ultimate determination of whether a valid waiver of [Miranda] rights has occurred,

 9 however, is a question of law [that] we review de novo.” State v. Martinez, 1999-

10 NMSC-018, ¶ 15, 127 N.M. 207, 979 P.2d 718 (internal quotation marks and citation

11 omitted).

12        As we explained, there were two hearings. At the first hearing, Deputy

13 Marshall testified that he had no specific recollection of advising Child of his

14 constitutional rights, but he stated that he believed that he probably did. He also

15 admitted that during a prior interview with Child’s counsel, he stated that he never

16 Mirandized Child. Officer Doering testified that although he had no personal

17 knowledge of whether Deputy Marshall Mirandized Child, he did note on his report

18 that Deputy Marshall had Mirandized Child. Officer Doering also testified that there

19 is a standard procedure wherein the person conducting the DRE evaluation confirms


                                             6
 1 with the arresting officer that Miranda warnings have been given to a defendant and

 2 that the officer conducting the DRE evaluation then gives the Miranda warnings to

 3 the defendant again to ensure that the defendant is aware of his or her rights. Officer

 4 Doering testified that he did advise Child of his constitutional rights including the

 5 right to have a parent or guardian present and that Child indicated that he had been

 6 advised of those rights and agreed to proceed with the DRE evaluation. Officer

 7 Doering referred to the digitally recorded tape of the DRE evaluation. He initially

 8 believed that this recording had been purged from the police system after 90 days

 9 pursuant to departmental policy. Officer Doering also offered testimony that Child

10 understood his rights and never indicated that he wanted an attorney, parent,

11 guardians, or a friend present.

12        The district court was not convinced that Child had ever been fully advised of

13 this rights, and ruled that Child’s statements would be suppressed and that Officer

14 Doering could not testify about the DRE. The day after the first hearing, Officer

15 Doering discovered a separate video recording of the DRE evaluation. The State

16 moved to reconsider.       At this second hearing–a hearing on the motion to

17 reconsider—the district court listened to arguments from the prosecution and the

18 defense regarding what could be heard as to whether Child was given his Miranda

19 rights or not. The prosecutor acknowledged that the recording was difficult to hear,


                                              7
 1 but that Officer Doering could be heard confirming with Deputy Marshall that he had

 2 given Child his Miranda warnings. The prosecutor said that Child can be heard

 3 acknowledging that he had been told his rights and that he understood them. The

 4 prosecutor also stated that on the recording Officer Doering can be heard specifically

 5 advising Child of his right to remain silent and that the prosecutor was “pretty sure”

 6 that she heard Officer Doering tell Child that anything he said could be used against

 7 him. The defense counsel argued that although he could hear a reference to

 8 constitutional rights—specifically the right to remain silent—on the recording, the

 9 defense counsel could not hear “every word spoken” and did not hear every individual

10 right stated to Child and, therefore, the video was not sufficient to establish that Child

11 was given Miranda warnings. After discussing the DRE evaluation recording with

12 the prosecution and the defense, the district court concluded that it had sufficient

13 evidence to determine that Deputy Marshall had advised Child of his constitutional

14 rights, that Child confirmed that he was advised of his rights and understood them,

15 and that Officer Doering had again advised Child of his rights. The district court

16 denied Child’s motion to suppress. We agree with the district court that there was

17 sufficient evidence for the court to conclude that Child had been advised of his rights

18 as required under Javier M., 2001-NMSC-030, ¶ 1.

19        Child further argues that Child’s admission on video that he had been read his


                                               8
 1 rights and understood them does not support a finding that Child “knowingly,

 2 intelligently, and voluntarily waived his constitutional rights.” The State contends

 3 that this argument was not preserved. Although we agree that the focus of the

 4 argument was on whether Child ever received Miranda warnings with primary

 5 reliance on Javier M., Child’s attorney did argue the differences between a child’s

 6 understanding and that of an adult. However, Child’s attorney never cited to NMSA

 7 1978, Section 32A-2-14(D) or (E) (2009), nor did he actually argue that Child never

 8 “knowingly, intelligently, and voluntarily waived his constitutional rights.” Even

 9 though there may be a question about preservation, we will address this issue. Child

10 maintains that “there are no facts in evidence to support a knowing, voluntary or

11 intelligent waiver” of his constitutional rights. Our review of the record shows

12 otherwise.

13       The district court did note that Child was asked if he understood his rights:

14       We now have a tape. We have a tape in which they talk about the fact
15       that [Child] was Mirandized . . . I don’t like changing my ruling, but the
16       fact is now we have a videotape that . . . indicates that [they] went over
17       the constitutional rights, that [Child] was advised of [his] Miranda rights
18       . . . I am convinced that he was advised of his Miranda rights and
19       actually even, again, with this . . . tape was kind of advised again, “Did
20       you go over them, did you understand them?”

21 The record shows that Child was seventeen years old, thus he was old enough to

22 comprehend the Miranda warning and the consequences of waiving his rights. See


                                             9
 1 Martinez, 1999-NMSC-018, ¶ 22. Once in custody, Child was advised of his Miranda

 2 rights, and he was advised a second time before the DRE evaluation at which time he

 3 was also advised that he could have his parents or a friend present. He chose not to

 4 ask for others to be present. There was testimony that Child was cooperative. The

 5 stop occurred after midnight, and after Child’s blood was drawn, he was escorted to

 6 the police station around 2:00 a.m. to undergo a DRE evaluation. Although the hour

 7 was late, there was no evidence that the interaction between Child and the police

 8 officers was overly lengthy or that Child experienced duress or coercion at the time

 9 he was talking to the deputy or the officer.

10        To evaluate whether Child knowingly, intelligently, and voluntarily waived his

11 constitutional rights, “we look to the totality of circumstances, giving particular

12 emphasis to the factors listed in Section 32A-2-14(E).” Martinez, 1999-NMSC-018,

13 ¶ 18. Our review of the facts in this case support a conclusion that Child did

14 understand his rights as determined by the district court, and that his waiver was a

15 valid one.

16 2.     Motion to Exclude

17        Next, Child argues that the district court abused its discretion in denying his

18 motion to exclude testimony about the DRE evaluation including Child’s statements

19 made during the evaluation and the results as a sanction for the destruction of the


                                             10
 1 recording of the evaluation. As we have explained, the audio version of Officer

 2 Doering’s DRE evaluation of Child was digitally recorded and this particular

 3 recording was purged from the police system 90 days later pursuant to departmental

 4 policy. In an oral ruling, the district court granted Child’s motion to exclude DRE

 5 testimony and evaluation results.

 6        After the hearing, Officer Doering searched his DRE evaluation tapes and found

 7 a video recording of Child’s evaluation. Officer Doering testified that he notified the

 8 prosecutor and the defense counsel within 24 hours of finding the tape and provided

 9 both sides with a copy about a month before the trial. Based on the existence of the

10 video recording and Child’s opportunity to review it before trial, the district court

11 reconsidered its determination and ultimately denied Child’s motion.

12        This Court “review[s] an alleged error in the admission of evidence for an abuse

13 of discretion.” State v. Martinez, 2007-NMSC-025, ¶ 7, 141 N.M. 713, 160 P.3d 894.

14 “The lower court’s ruling will be disturbed on appeal only when the facts and

15 circumstances of the case do not support [its] logic and effect.” Id. (alteration in

16 original) (internal quotation marks and citation omitted). “In order to find an abuse

17 of discretion, we must conclude that the decision below was against logic and not

18 justified by reason.” State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d

19 1027 (internal quotation marks and citation omitted).


                                             11
 1        In this case, Child focuses his argument on the institutional policy of destroying

 2 relevant evidence in DWI cases. Although Child acknowledges that the video

 3 recording of the DRE was produced before trial, he contends that there was still a loss

 4 of evidence—the audio recording. He argues that the audio recording was potentially

 5 exculpatory, that it was destroyed by police officers, that it was material, and that its

 6 “unavailability was prejudicial since it prevented Child’s counsel from effectively

 7 impeaching the officer’s testimony as to what occurred.” Child contends that it was

 8 an abuse of discretion for the court to reverse its original ruling excluding evidence

 9 regarding the DRE evaluation.

10        We agree that in criminal cases, “the Government plainly has the obligation to

11 make available to the defense evidentiary material in its possession which is

12 disclosable.” State v. Chouinard, 96 N.M. 658, 660, 634 P.2d 680, 682 (1981)

13 (internal quotation marks and citation omitted). We also agree that the “[d]estruction

14 of evidence can . . . result in a denial of due process.” State v. Hill, 2005-NMCA-143,

15 ¶ 20, 138 N.M. 693, 125 P.3d 1175. New Mexico has adopted a three-part test to

16 determine whether deprivation of evidence violates a criminal defendant's right to due

17 process and requires suppression of the evidence. Chouinard, 96 N.M. at 661, 634

18 P.2d at 683. The questions to be answered under this test are: (1) did the state breach

19 its duty to preserve the evidence or intentionally deprive the defendant of it, (2) was


                                              12
 1 the evidence material, and (3) did the suppression or loss of the evidence prejudice the

 2 defendant. Id. Although the district court originally answered the three questions in

 3 the affirmative, on reconsideration after disclosure of the video recording, the district

 4 court ruled that the DRE testimony was no longer excluded and Child’s statements

 5 were no longer suppressed.

 6        The State does not dispute the district court’s finding that the destruction of the

 7 audio recording was a breach of the State’s duty to disclose exculpatory evidence. The

 8 district court also found that the destruction was not a matter of bad faith, and we

 9 agree that there was substantial evidence to support this finding. The State disagrees

10 with the court’s additional finding that the evidence was material, but we need not

11 address this issue because the district court ultimately determined that the loss of the

12 audio recording did not prejudice Child. The court observed that the video recording,

13 even with poor sound quality, provided independent evidence of what occurred during

14 the DRE evaluation and thus the video recording mitigated any prejudice that might

15 have existed based on the loss of the audio recording of the DRE evaluation.

16 Additionally, the district court allowed Child’s counsel the opportunity to cross-

17 examine Officer Doering about the loss of the recording thereby granting one of the

18 remedies available when the loss of evidence is discovered before trial. Id. at 663,

19 634 P.2d at 685. Based on these facts, we conclude that there was no abuse of


                                              13
 1 discretion in denying Child’s motion to exclude, and we affirm the district court’s

 2 ruling. See Martinez, 2007-NMSC-025, ¶ 7.

 3 3.     Toxicology Report

 4        Finally, Child argues that the district court violated Child’s right to

 5 confrontation in admitting a toxicology report into evidence through an analyst other

 6 than the one who conducted the test and prepared the report. As a general rule, when

 7 a defendant argues that the admission of evidence violates the right to confront a

 8 witness, we review de novo the district court’s decision to admit the evidence when

 9 the argument has been preserved. See State v. Lopez, 2000-NMSC-003, ¶¶ 10-12, 128

10 N.M. 410, 993 P.2d 727.

11        During the trial, the State introduced the toxicology report through the

12 testimony of Dr. Rong-Jen Hwang after establishing that Dr. Hwang was an expert in

13 forensic toxicology. Dr. Hwang testified as to the procedures followed in producing

14 the toxicology report, as well as the results of Child’s blood sample. The defense

15 objected on confrontation grounds because Dr. Hwang did not prepare the report and

16 because the analysts who prepared the report were never identified and did not appear

17 at trial. U.S. Const. amend. VI. The district court admitted the toxicology report into

18 evidence over defense counsel’s objections.

19        In light of our Supreme Court’s decision in State v. Aragon, 2010-NMSC-008,


                                             14
 1 147 N.M. 474, 225 P.3d 1280, we hold that it was error for the district court to admit

 2 the toxicology report into evidence without having the analyst who prepared the report

 3 available to testify. The Court in Aragon held that a report prepared by an analyst is

 4 “functionally identical to live, in-court testimony” and is used to “prove a fact

 5 necessary for conviction[.]” Id. ¶ 8 (internal quotation marks and citation omitted).

 6 The Supreme Court further stated that admitting a scientific report without the analyst

 7 who prepared it being available to testify is a violation of a defendant’s right of

 8 confrontation. Id. ¶ 12. Given this ruling, we hold that it was error for the district

 9 court to admit the toxicology report into evidence without having the analyst who

10 prepared it available to testify at trial. Id.

11         However, the Court in Aragon also held that, in that case, the erroneous

12 admission of the scientific report was harmless error. The Court outlined three factors

13 for determining harmless error when a constitutional right is involved.

14         The factors are whether there is: (1) substantial evidence to support the
15         conviction without reference to the improperly admitted evidence; (2)
16         such a disproportionate volume of permissible evidence that, in
17         comparison, the amount of improper evidence will appear minuscule;
18         and (3) no substantial conflicting evidence to discredit the [s]tate’s
19         testimony.

20 Id. ¶ 35 (internal quotation marks and citation omitted).          “No one factor is

21 determinative; rather, they are considered in conjunction with one another.” Id.

22 (internal quotation marks and citation omitted). An appellate court should conclude

                                               15
 1 that a constitutional error is harmless only when there is no reasonable possibility that

 2 it affected the verdict. Id.; State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210

 3 P.3d 198. It is not the role of the appellate court to reweigh the evidence against a

 4 defendant. Aragon, 2010-NMSC-008, ¶ 35; Barr, 2009-NMSC-024, ¶ 57. Therefore,

 5 the harmless error analysis does not center on whether, in spite of the error, the right

 6 result was reached, but on whether the verdict was impacted by the error. Aragon,

 7 2010-NMSC-008, ¶ 35; Barr, 2009-NMSC-024, ¶ 57. Weighing these factors, a

 8 reviewing court must decide if it can conclude that there was no reasonable possibility

 9 that an error did not contribute to the jury’s verdict. See Aragon, 2010-NMSC-008,

10 ¶ 35.

11         In the case before us, there was substantial evidence of Child’s impairment

12 introduced at trial aside from the toxicology report. See § 66-8-102(B). Deputy

13 Marshall testified that Child had bloodshot, watery eyes, that he detected the odor of

14 marijuana coming from Child’s vehicle, and that Child did not do well on the field

15 sobriety tests. Officer Doering also testified that after performing the DRE evaluation

16 of Child, the officer believed that Child was impaired to the point where he should not

17 be operating a motor vehicle. In addition, we have Child’s confession to Deputy

18 Marshall that he had smoked “two bowls” of marijuana approximately thirty minutes

19 before arriving at the checkpoint and that he had also taken a muscle relaxer and


                                              16
 1 Lortab, as well as Child’s confession to Officer Doering that he had taken two

 2 prescription medications—a muscle relaxer and Lortab—and that he had smoked

 3 marijuana earlier in the day and about thirty minutes before getting to the DWI

 4 checkpoint. Finally, while Dr. Hwang’s expert testimony was based in part on the

 5 toxicology report that should have been excluded, he also based his conclusion on

 6 DRE protocol and on his interpretation of Officer Doering’s report on the DRE

 7 evaluation, Deputy Marshall’s report on the field sobriety tests, and Deputy

 8 Marshall’s observations of Child at the DWI checkpoint.

 9        We hold that the evidence described above amounts to such a disproportionate

10 volume of permissible evidence that, in comparison, the amount of improper evidence

11 admitted appears so minuscule that there is no reasonable possibility that it could have

12 affected the verdict. See Aragon, 2010-NMSC-008, ¶ 36; Barr, 2009-NMSC-024, ¶

13 59. Deputy Marshall and Officer Doering’s observations of Child’s impairment, as

14 well as Child’s confessions of having smoked marijuana and taken a couple of

15 different prescription drugs made the toxicology report inconsequential. See Barr,

16 2009-NMSC-024, ¶ 59.

17        Finally, there was no substantial conflicting evidence to discredit the State’s

18 testimony regarding Child’s impairment. See id. ¶ 60. Child unsuccessfully tried to

19 suppress and exclude evidence of his intoxication, but at no time during the trial did


                                              17
1 Child contest Deputy Marshall or Officer Doering’s observations of Child’s

2 impairment. Therefore, there was no substantial evidence presented to conflict with

3 the testimony presented by the State. See id.

4       After examining the three factors outlined in Aragon and Barr, we hold that the

5 admission of the toxicology report was harmless error. Because we determine that the

6 admission was harmless error, we uphold Child’s conviction for DWI.

7       IT IS SO ORDERED.


8                                        __________________________________
9                                        CELIA FOY CASTILLO, Chief Judge

10 WE CONCUR:



11 __________________________________
12 JONATHAN B. SUTIN, Judge



13 __________________________________
14 LINDA M. VANZI, Judge




                                           18
