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

 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                 NO. 27,867

 5 SCOTT D. JOHNSON,

 6         Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Don Maddox, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Joel Jacobsen, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Eleanor Brogan, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                               MEMORANDUM OPINION

19 WECHSLER, Judge.

20         Defendant Scott Johnson appeals from his conviction of trafficking a controlled

21 substance as an accessory. On appeal, Defendant argues that (1) the district court

22 erred in admitting a forensic crime laboratory report created by the New Mexico
 1 Department of Public Safety (DPS) into evidence as an exception to the hearsay rule,

 2 (2) his constitutional right to confrontation was violated when one DPS laboratory

 3 analyst was permitted to offer testimony based on the DPS laboratory report in

 4 question in place of the analyst who actually created the report, (3) the State failed to

 5 introduce sufficient evidence to support his conviction, and (4) his attorney provided

 6 ineffective assistance of counsel. We conclude that the district court committed no

 7 reversible error and that sufficient evidence was presented to support Defendant’s

 8 conviction. We affirm.

 9 BACKGROUND

10        Defendant was charged with trafficking a controlled substance following an

11 undercover investigation performed by Agents John Martinez and Chris Kemp, two

12 law enforcement officials employed by the Lea County Drug Task Force. Defendant

13 was ultimately brought to trial before a jury at which four witnesses offered testimony:

14 (1) Agent Martinez, (2) Agent Kemp, (3) Defendant, and (4) Eric Young, a forensic

15 scientist employed by the DPS.

16        According to Agent Martinez’s testimony, Agent Martinez came into contact

17 with Defendant while on undercover patrol in an area known for its frequent drug

18 activity. Upon initiating contact with Defendant, Agent Martinez expressed his desire


                                               2
 1 to purchase crack cocaine. In response, Defendant produced three rocks that appeared

 2 to be crack cocaine, which Agent Martinez offered to buy from Defendant for $40.

 3 Agent Martinez informed Defendant that he needed to go to his vehicle to get the

 4 money. Defendant told him to do so, and Agent Martinez returned with a $100 bill.

 5 Agents Martinez and Kemp drove to a convenience store for change. When they

 6 returned, Defendant was with others, and he and another man were smoking crack

 7 cocaine. Defendant informed Agents Martinez and Kemp that he would obtain crack

 8 cocaine for them at another location if they gave him cash. Agent Martinez did not

 9 agree, and, ultimately, Defendant suggested that all three men go together to obtain

10 the crack cocaine. Agents Martinez and Kemp agreed, and all three men got into the

11 agents’ truck and drove to another area at Defendant’s direction. When they arrived

12 at an alleyway, Defendant left the truck and returned with two other men. Defendant

13 and one of the men who referred to himself as “Shorty” got into the backseat of the

14 agents’ truck, and Shorty and Agent Martinez negotiated a price for the crack cocaine

15 in Shorty’s possession. When the transaction was completed, Shorty exited the truck,

16 and the agents drove Defendant back to his home. On cross-examination, Agent

17 Martinez testified that he did not hear any conversation between Shorty and

18 Defendant, that Defendant did not participate in the negotiations between Agent


                                             3
 1 Martinez and Shorty, and that Defendant never handled any of the money or crack

 2 cocaine involved in the transaction.

 3        Agent Kemp testified that Defendant directed Agent Martinez and him to a

 4 location to obtain crack cocaine. Defendant left to meet someone to get the crack

 5 cocaine to bring back to them. Defendant returned with two men. One of the men

 6 told Agent Martinez that he had the drugs. The other man and Defendant entered the

 7 agents’ truck. Drugs were handed to Agent Martinez, who put them in the ashtray.

 8        According to Defendant’s testimony, the crack cocaine he had when he first met

 9 the agents was not for sale. However, Defendant admitted that he offered to “go get”

10 crack cocaine for the agents if they gave him money. Defendant testified that he

11 decided to get into the agents’ truck so that he could purchase more crack cocaine for

12 himself. Defendant further testified that after the truck was parked in the new area,

13 he exited the vehicle to look for crack cocaine to purchase for himself; was unable to

14 locate his regular dealer; returned to the agents’ truck; and was, unbeknownst to him,

15 followed by Shorty. Finally, Defendant testified that he did not know Shorty, he was

16 not involved in the negotiations between Shorty and Agent Martinez, he did not

17 encourage or help Shorty to sell crack cocaine to the agents, and he did not profit from

18 the ultimate sale.


                                              4
 1        The State also called Eric Young of the DPS to testify. Defendant moved in

 2 limine to restrict Mr. Young’s testimony, and the district court heard testimony of Mr.

 3 Young out of the presence of the jury in connection with the motion. Defendant’s

 4 objections to the testimony included hearsay and the violation of Defendant’s right to

 5 confront the analyst of the evidence in violation of the United States and New Mexico

 6 constitutions. The district court denied the motion, and Mr. Young proceeded to

 7 testify before the jury. Mr. Young offered testimony concerning the chemical testing

 8 of the crack cocaine sold to the agents. He testified that he was a forensic scientist

 9 employed at the Southern Forensic Laboratory, that another employee, Danielle

10 Elenbaas, performed the tests on the substance at issue, and that she ultimately

11 determined it to be crack cocaine. On cross-examination, Mr. Young admitted that

12 he did not analyze the substance at issue or observe the other forensic chemist’s

13 performance of the tests. Finally, Mr. Young admitted that he simply reviewed the

14 other forensic chemist’s report before testifying. Following Mr. Young’s testimony,

15 the DPS laboratory report was admitted into evidence.

16        The State rested its case. Defendant’s counsel then moved for a dismissal of

17 the charge against Defendant, arguing that “there is [no] criminal liability or criminal

18 sanctions provided for a person unlawfully and intentionally assisting another person


                                              5
 1 in the transfer of a controlled substance.” Defendant’s counsel also moved for a

 2 directed verdict, arguing that there was insufficient evidence for the jury to conclude

 3 that Defendant caused, encouraged, or helped Shorty sell the crack cocaine to Agent

 4 Martinez. The district court denied both motions, and the jury ultimately convicted

 5 Defendant. This appeal followed.

 6 ADMISSIBILITY OF LABORATORY REPORT

 7        Defendant argues that the district court erred in admitting into evidence the DPS

 8 laboratory report indicating that the substance sold to Agent Martinez was crack

 9 cocaine because it constituted hearsay evidence not covered by any exception to the

10 hearsay rule. The State responds by arguing that the report was not introduced into

11 evidence. In his reply brief, Defendant states that the report “was not tagged as a

12 physical exhibit” but “was admitted into evidence in the form of Mr. Young’s

13 testimony.”

14        We need not directly address Defendant’s argument that the report was before

15 the jury in the form of Mr. Young’s testimony. Even if we assume that Mr. Young’s

16 testimony was tantamount to the receipt in evidence of the report, we conclude that

17 the district court did not err in admitting hearsay evidence.

18        “We review the admission of evidence under an exception to the hearsay rule


                                              6
 1 with deference to the trial court’s discretion; we review to determine whether there has

 2 been an abuse of discretion.” State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133

 3 N.M. 459, 64 P.3d 486, aff’d, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234. We

 4 will not conclude that the district court “abused its discretion by its ruling unless we

 5 can characterize it as clearly untenable or not justified by reason.” State v. Mora,

 6 2003-NMCA-072, ¶ 8, 133 N.M. 746, 69 P.3d 256 (internal quotation marks and

 7 citation omitted).

 8        Although the district court allowed Mr. Young’s testimony without reference

 9 to a particular exception to the hearsay rule, Defendant and the State based their

10 arguments, in part, on the business records exception. The business records exception

11 to the hearsay rule provides that the following documents are admissible:

12        A memorandum, report, record or data compilation, in any form, of acts,
13        events, conditions, opinions or diagnoses, made at or near the time by,
14        or from information transmitted by, a person with knowledge, if kept in
15        the course of a regularly conducted business activity, and if it was the
16        regular practice of that business activity to make the memorandum,
17        report, record or data compilation, all as shown by the testimony of the
18        custodian or other qualified witness[.]

19 Id. The rule further provides that the exception is not to be applied if the “source of

20 information or the method or circumstances of preparation indicate lack of

21 trustworthiness.” Id. Defendant primarily argues on appeal that the public records


                                              7
 1 exception to the hearsay rule does not apply. The public records exception to the

 2 hearsay rule permits the admission of “[r]ecords, reports, statements or data

 3 compilations, in any form, of public offices or agencies” that set forth “the activities

 4 of the office or agency” or “matters observed pursuant to duty imposed by law as to

 5 which matters there was a duty to report, excluding, however, in criminal cases

 6 matters observed by police officers and other law enforcement personnel.” Rule 11-

 7 803(H)(1)-(2).

 8        In State v. Christian, 119 N.M. 776, 778, 895 P.2d 676, 678 (Ct. App. 1995),

 9 limited on other grounds by State v. Ruiz, 120 N.M. 534, 537, 903 P.2d 845, 848 (Ct.

10 App. 1995), this Court considered the admissibility of a blood alcohol report created

11 by an employee of the Scientific Laboratory Division of the New Mexico Department

12 of Health (SLD) under both the business records and public records exceptions to the

13 hearsay rule. We held that the report was properly admitted into evidence under both

14 exceptions. Id. at 780-82, 895 P.2d at 680-82.

15        Defendant essentially offers no argument against the admission of Eric Young’s

16 testimony under the plain language of the business record exception, Rule 11-803(F),

17 and our review of the trial transcript revealed that, as in Christian, a sufficient

18 foundation for that exception was laid and that there was no indication elicited at trial


                                               8
 1 that called into question the trustworthiness of the DPS laboratory report on which Mr.

 2 Young based his testimony. See Christian, 119 N.M. at 780-81, 895 P.2d at 680-81.

 3 At bottom, Defendant argues that the district court’s admission of the DPS laboratory

 4 report into evidence was reversible error because it “allow[ed] the State to prove its

 5 case through a report generated by a police agency during the investigation of a crime

 6 under the guise of an ordinary business record.” However, as we stated in State v.

 7 Delgado, 2009-NMCA-___, ¶ 11, ___ N.M. ___, ___ P.3d ___ (No. 27,192, May 14,

 8 2009), even if we were to accept Defendant’s assertion that the Southern Forensic

 9 Laboratory of the DPS is a “police agency,” Christian expressly dictates that “even

10 documents prepared by the state police crime laboratory can satisfy the public records

11 exception where an adequate foundation for reliability is laid.” Christian, 119 N.M.

12 at 781, 895 P.2d at 681; see Delgado, 2009-NMCA-___, ¶ 8. As we have stated

13 above, Defendant offers no compelling argument alleging that an improper foundation

14 for the DPS laboratory report was laid or that the report was in any way unreliable.

15 We therefore conclude that the district court did not abuse its discretion in admitting

16 the DPS laboratory report into evidence.

17 RIGHT TO CONFRONTATION

18        Defendant argues that, because Defendant was not permitted to cross-examine


                                              9
 1 the DPS laboratory analyst who created the laboratory report at issue, his Sixth

 2 Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36

 3 (2004), was violated. We review this issue de novo. State v. Dedman, 2004-NMSC-

 4 037, ¶ 23, 136 N.M. 561, 102 P.3d 628 (“Questions of admissibility under the

 5 Confrontation Clause are questions of law.”).

 6        In Dedman, our Supreme Court held that a breath alcohol report of the SLD was

 7 not testimonial evidence for purposes of the Confrontation Clause under Crawford for

 8 a variety of reasons, including that SLD personnel are not law enforcement. Dedman,

 9 2004-NMSC-037, ¶ 30. Defendant contends that Dedman does not apply in this case

10 because, unlike Dedman, the laboratory report in this case was prepared by a forensic

11 chemist employed by DPS, “specifically to help law enforcement agencies investigate

12 and prosecute cases.” We addressed this issue in Delgado. In Delgado, we declined

13 to credit this distinction and held, instead, that the testimony of a DPS forensic

14 chemist concerning the report of an analysis for controlled substances prepared by

15 another DPS forensic chemist was not testimonial evidence under Crawford.

16 Delgado, 2009-NMCA-___, ¶ 18. We further held that the defendant’s inability to

17 cross-examine the forensic chemist who prepared the report did not violate the

18 defendant’s confrontation rights under Ohio v. Roberts, 448 U.S. 56 (1980),


                                            10
 1 abrogated on other grounds by Crawford, 541 U.S. 36, because the hearsay testimony

 2 was admitted under firmly-rooted exceptions to the hearsay rule—the business records

 3 and public records exceptions. Delgado, 2009-NMCA-___, ¶ 18. On the basis of our

 4 analysis in Delgado, Defendant has not shown a confrontation clause violation in this

 5 case.

 6 SUFFICIENCY OF THE EVIDENCE

 7         Defendant further argues that the evidence presented at his trial was insufficient

 8 to prove beyond a reasonable doubt that he was an accessory to the crime of

 9 trafficking crack cocaine. In addressing Defendant’s argument, “[w]e must view the

10 evidence in the light most favorable to the State, resolving all conflicts and indulging

11 all permissible inferences in favor of the verdict[s,]” and we must conduct our review

12 “to determine whether any rational jury could have found the essential facts to

13 establish each element of the crime[s] beyond a reasonable doubt.” State v. Reed,

14 2005-NMSC-031, ¶ 14, 138 N.M. 365, 120 P.3d 447.

15         The district court instructed the jury that to convict Defendant of trafficking of

16 a controlled substance by distribution, the State was required to prove beyond a

17 reasonable doubt that, on July 21, 2005, Defendant transferred crack cocaine to

18 another, and Defendant knew it was crack cocaine. The court further instructed the


                                               11
 1 jury that it may find Defendant guilty,

 2        even though he himself did not do the acts constituting the crime, if the
 3        State proves to your satisfaction beyond a reasonable doubt that:

 4              1.     [D]efendant intended that the crime be committed;

 5              2.     The crime was committed;

 6            3.     [D]efendant helped, encouraged or caused the crime to be
 7        committed.

 8        The testimony of Agent Martinez indicates that he attempted to purchase crack

 9 cocaine from Defendant. When Defendant could not provide the crack cocaine they

10 originally discussed, Defendant offered to obtain other crack cocaine. He went in the

11 agents’ truck to another location. Defendant left the truck and returned with another

12 man, Shorty, with whom Agent Martinez negotiated a purchase. Defendant testified

13 that he was not involved in the sale of crack cocaine by Shorty and was present

14 because he wanted to purchase crack cocaine for himself. However, Defendant

15 admitted that he offered to obtain crack cocaine for the agents if they provided him

16 money. According to Agent Martinez’s testimony, when the agents would not give

17 Defendant money, Defendant suggested that he go with the agents to obtain crack

18 cocaine. The testimony of Agent Martinez about Defendant’s actions, when viewed

19 in the light most favorable to the verdict, was sufficient evidence upon which the jury


                                             12
 1 could have reasonably concluded beyond a reasonable doubt that Defendant helped,

 2 encouraged, or caused the sale by Shorty to be made. See State v. Hernandez, 115

 3 N.M. 6, 26, 846 P.2d 312, 332 (1993) (discussing that in a substantial evidence

 4 review, the court “may not reweigh the evidence nor substitute [its] judgment for that

 5 of the jury”).

 6 INEFFECTIVE ASSISTANCE OF COUNSEL

 7        Defendant lastly argues that his trial counsel did not provide him effective

 8 assistance because he failed to file a motion to suppress or a motion to dismiss or

 9 inquire about whether Shorty was a confidential informant. To establish a prima facie

10 case of ineffective assistance of counsel, Defendant has the burden to prove that (1)

11 his attorney’s performance fell below that of a reasonably competent attorney, and (2)

12 Defendant was prejudiced by his attorney’s deficient performance. State v. Hester,

13 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.             In determining whether

14 Defendant has established a prima facie case of ineffective assistance of counsel, we

15 do not second guess the trial strategy and tactics of counsel. State v. Gonzales, 113

16 N.M. 221, 230, 824 P.2d 1023, 1032 (1992).

17        Although Defendant argues that “the facts in the record demonstrate that a

18 reasonably competent attorney would have filed a motion to suppress the [crack]


                                             13
 1 cocaine evidence or motion to dismiss the charges based on the criminal complaint,”

 2 he does not explain in any way the facts that support his argument. Defendant had the

 3 burden to show how the facts support his argument. See State v. Stenz, 109 N.M. 536,

 4 537, 787 P.2d 455, 456 (Ct. App. 1990). Because Defendant does not direct us to the

 5 facts supporting his argument, he did not meet his burden. He did not raise a prima

 6 facie case that his attorney’s performance fell below that of a reasonably competent

 7 attorney.

 8        Defendant also does not explain the basis for his argument that his attorney was

 9 ineffective by failing to inquire about whether Shorty was a confidential informant.

10 As we have stated, we will not second guess an attorney’s trial strategy or tactics.

11 Defendant has also not shown in this regard that his attorney did not meet the standard

12 of a reasonably competent attorney.

13        Moreover, as we have discussed, Defendant must not only prove that his

14 attorney did not meet the standard of a reasonably competent attorney, he must also

15 show prejudice. Hester, 1999-NMSC-020, ¶ 9. Even if we were to assume that

16 Defendant met his first obligation, he has not addressed the manner in which the

17 deficiencies in his attorney’s performance that he has alleged have prejudiced him.

18        Defendant has not made a prima facie case of ineffective assistance of counsel.


                                             14
1 As the State argues, the preferred procedure to raise the issue is through a post-

2 conviction habeas corpus proceeding. State v. Martinez, 1996-NMCA-109, ¶ 25, 122

3 N.M. 476, 927 P.2d 31.

4 CONCLUSION

5       We affirm.

6       IT IS SO ORDERED.



7                                             _______________________________
8                                             JAMES J. WECHSLER, Judge

9 WE CONCUR:




10 _______________________________
11 CYNTHIA A. FRY, Chief Judge




12 _______________________________
13 CELIA FOY CASTILLO, Judge




                                         15
