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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                             NO. 27,166

 5 RUBEN LARA,

 6       Defendant-Appellant.

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

 9 Gary K. King, Attorney General
10 Nicole Beder, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

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

16 for Appellant

17                             MEMORANDUM OPINION

18 WECHSLER, Judge.

19       Defendant Ruben Lara appeals his convictions of one count of trafficking a

20 controlled substance (cocaine) and possession of drug paraphernalia and two counts

21 of possession of a controlled substance (methamphetamine and marijuana). He
 1 contends that (1) the district court erred in admitting as evidence the report of a

 2 Department of Public Safety forensic crime laboratory (Crime Lab) and violated his

 3 constitutional right to confront the forensic chemist who prepared the report, (2) the

 4 district court erred in admitting State’s Exhibits 6 and 7 because the State failed to

 5 establish a proper chain of custody, and (3) there was not sufficient evidence to

 6 support his convictions for trafficking cocaine and possession of methamphetamine

 7 and marijuana. We affirm.

 8 FORENSIC CHEMIST’S REPORT

 9        At trial, Eric Young, a forensic chemist at the Crime Lab, testified about the

10 report prepared by another forensic chemist at the Crime Lab, Danielle Elenbaas. Mr.

11 Young testified that Ms. Elenbaas concluded that the substances she tested were

12 cocaine. Defendant objected to, and moved to strike, Mr. Young’s testimony on the

13 basis that he did not have the knowledge to establish a foundation for an exception to

14 the hearsay rule for a business record. Defendant also objected that Mr. Young could

15 not testify concerning Ms. Elenbaas’ analysis because he did not have knowledge of

16 Defendant’s case before testifying.

17        Defendant argues on appeal that the district court erred in admitting the report

18 of Ms. Elenbaas because it was hearsay. He further argues that Mr. Young’s


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 1 testimony violated his Sixth Amendment right to confront Ms. Elenbaas. We have

 2 underlying questions about both arguments. As to the first, there is no indication in

 3 the record that the report was admitted into evidence. As to the second, Defendant did

 4 not clearly raise a confrontation issue in the district court.

 5        Regardless, our opinion in State v. Delgado, 2009-NMCA-___, ___ N.M. ___,

 6 ___ P.3d ___ (No. 27,192, May 14, 2009), controls Defendant’s arguments on the

 7 merits. In Delgado, in circumstances essentially identical to those in this case, we

 8 held that a Crime Lab report was admissible as either a business record or a public

 9 record exception to the hearsay rule. Id. ¶ 12. We also held that the absence of the

10 forensic chemist who conducted the analysis and prepared the report did not violate

11 constitutional confrontation requirements. Id. ¶ 18. On the basis of the record in this

12 case as well as Delgado, there was no error with regard to Mr. Young’s testimony.

13 CHAIN OF CUSTODY

14        After Defendant’s probation officer, Patty Shepard, observed Defendant with

15 Cynthia Salas at Ms. Salas’ home, in apparent violation of the conditions of both of

16 their probations, she contacted the Hobbs police for assistance. The police conducted

17 a pat down search of Defendant and found a glass crack pipe and $2100 cash. Ms.

18 Shepard testified that when she asked Defendant if he was driving the Mitsubishi that


                                               3
 1 was parked in front of the house, Defendant said that he was. She then looked in the

 2 car and found two bags of a white powder-like substance in the center console. She

 3 also found Defendant’s wallet in the car. Ms. Shepard called the Drug Task Force to

 4 come to the location. Agent John Martinez testified that when he arrived, Ms.

 5 Shepard gave him two bags. He performed a field test. Ms. Shepard and Agent

 6 Martinez also saw small bags of a white substance under the Chevrolet Impala parked

 7 in the driveway. Agent Martinez took custody of all the bags and submitted them to

 8 the Crime Lab.

 9        Defendant argues that the district court erred in admitting Exhibits 6 and 7,

10 purporting to be the bags containing a white powdery substance retrieved from the

11 Mitsubishi. He contends that the State failed to prove a proper chain of custody. We

12 review the admission of evidence for an abuse of discretion. State v. Rubio, 2002-

13 NMCA-007, ¶ 16, 131 N.M. 479, 39 P.3d 144. Real or demonstrative evidence is

14 admissible if it is identified either “visually or by establishing custody of the object

15 from the time of seizure to the time it is offered into evidence.” Id. (internal quotation

16 marks and citation omitted). A preponderance of the evidence must demonstrate that

17 the evidence “is what it purports to be.” Id.

18        Defendant points to inconsistencies in the testimony of Ms. Shepard and Agent


                                               4
 1 Martinez to create a break in the chain of custody. Agent Martinez testified that when

 2 he arrived at Ms. Salas’ residence, Ms. Shepard was standing behind the Mitsubishi

 3 and handed him the two plastic bags when he approached her. Ms. Shepard testified

 4 that she did not give the bags to anyone, but, instead, left them in the car. However,

 5 regardless of the inconsistency, the testimony is clear that Agent Martinez took

 6 custody of the bags, whether Ms. Shepard picked them out of the car and handed them

 7 to him, or whether he himself removed them from the car. There is no evidence that

 8 anyone tampered with the bags before Agent Martinez took possession of them.

 9 Defendant does not question the chain of custody from that point. The district court

10 did not abuse its discretion in admitting Exhibits 6 and 7.

11 SUFFICIENCY OF THE EVIDENCE

12        Defendant also argues that the State did not present sufficient evidence to

13 convict him of trafficking cocaine with intent to distribute and possession of

14 methamphetamine and marijuana. In reviewing for sufficiency of the evidence, we

15 “view the evidence in the light most favorable to the state, resolving all conflicts

16 therein and indulging all permissible inferences therefrom in favor of the verdict.”

17 State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We determine

18 “whether substantial evidence of either a direct or circumstantial nature exists to


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 1 support a verdict of guilt beyond a reasonable doubt with respect to every element

 2 essential to a conviction.” Id.

 3 Trafficking Cocaine

 4        With regard to his conviction for trafficking cocaine with intent to distribute,

 5 Defendant argues that the evidence did not establish that he had possession of the

 6 cocaine that was in the car and that the circumstances did not establish trafficking.

 7 The charge required the State to prove that, on September 15, 2005, Defendant had

 8 cocaine in his possession, knowing and believing that it was cocaine, and intending

 9 to transfer it to another.

10        Because Defendant did not physically possess the cocaine, the district court

11 instructed the jury on constructive possession that Defendant was in possession of the

12 cocaine if “he knows where it is, and he exercises control over it.” Defendant argues

13 that the evidence did not show that he had possession of the cocaine because the

14 evidence about the ownership of the Mitsubishi was conflicting. Indeed, Defendant

15 denied ownership in his testimony. However, Ms. Shepard testified that Defendant

16 told her that he was driving the Mitsubishi that day. Agent Martinez testified that he

17 met with Defendant at the Hobbs Police Department after Defendant was taken into

18 custody, and Defendant told him that all the drugs found outside the residence


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 1 belonged to him. Agent Jamie Moon of the Drug Task Force testified that in the past,

 2 he had seen Defendant drive the Mitsubishi in which the drugs were found.

 3 Defendant’s wallet was in the car. Defendant testified, however, that he had driven

 4 the car a couple of times in the past, almost a year earlier, but he did not drive it that

 5 day. He said that he must have left his wallet in the car when he had driven it. He

 6 denied telling Ms. Shepard that he was driving the Mitsubishi that day. As to any

 7 admission of drug ownership, he said that he told Agent Martinez, “[i]f you want me

 8 to say that is mine, because you want me to say, is mine[,]” or words to that effect.

 9        Despite Defendant’s denials, the jury was entitled to weigh the evidence and

10 disbelieve Defendant. State v. Gurule, 2004-NMCA-008, ¶ 38, 134 N.M. 804, 82

11 P.3d 975. It is not our job to “reweigh the evidence or substitute our judgment for that

12 of the [trier of fact].” State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114

13 P.2d 393. The State’s evidence was sufficient to prove that Defendant possessed the

14 cocaine in the Mitsubishi beyond a reasonable doubt.

15        As to intent to transfer the cocaine, Defendant contends that the “surrounding

16 circumstances” were not sufficient to establish trafficking. He argues that the

17 evidence was lacking because the prosecutor did not accurately question Agent

18 Martinez when eliciting Agent Martinez’s opinion as to whether the amounts of the


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 1 two bags would indicate personal use. Indeed, the prosecutor was not accurate in his

 2 questioning. He stated in his question that the testimony had been that Exhibit 6

 3 weighed 5.23 grams and that Exhibit 7 weighed 7.73 grams. In fact, the testimony had

 4 been that Exhibit 7 weighed 3.73 grams. However, despite the inaccuracy in the

 5 weight, the other evidence was sufficient for the jury to conclude that Defendant did

 6 not possess the cocaine for personal use. According to Agent Martinez, the cocaine

 7 was not packed for individual use. He described personal use amounts as ranging

 8 from $20 to $100 in value. Even though he may have inaccurately understood the

 9 total value of the cocaine to be $1200, he did state that its value was up to $100 per

10 gram, making the total value of the actual weight of 9.00 grams to be up to $900.

11 Defendant also had in his possession close to $3000 in cash and 15.28 grams of

12 methamphetamine and 2.8 grams of marijuana. See State v. Bejar, 101 N.M. 190, 191,

13 679 P.2d 1288, 1289 (Ct. App. 1984) (stating that “possession of a large quantity of

14 contraband has been found to be enough to allow the inference that [the] defendant

15 intended to distribute the controlled substance”).

16 Possession of Methamphetamine and Marijuana

17        Similar to his argument about possession of the cocaine, Defendant argues that

18 the evidence was insufficient to show that he was in possession of the


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 1 methamphetamine and marijuana found under the Chevrolet. The jury was instructed

 2 that the State was required to prove, beyond a reasonable doubt, that, on September

 3 15, 2005, Defendant had methamphetamine in his possession, knowing or believing

 4 it to be methamphetamine, and that he had one ounce or less of marijuana in his

 5 possession, knowing or believing that it was marijuana. It was further instructed on

 6 constructive possession that Defendant had possession of a controlled substance if he

 7 knew where it was and exercised control over it.

 8        Ms. Shepard and Agent Martinez found the methamphetamine and marijuana

 9 under the Chevrolet. Agent Martinez testified that Defendant “claimed ownership”

10 of these substances. Defendant testified that he told Agent Martinez something to the

11 effect of “[i]f you want me to say it’s mine, then it’s mine.” The jury could have

12 reasonably believed Agent Martinez and concluded that Defendant admitted

13 possession of the substances. See Montoya, 2005-NMCA-078, ¶ 3. Sufficient

14 evidence supports Defendant’s conviction of possession of methamphetamine and

15 marijuana.

16 CONCLUSION

17        We affirm Defendant’s convictions.




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1      IT IS SO ORDERED.



2                                       _______________________________
3                                       JAMES J. WECHSLER, Judge

4 WE CONCUR:




5 ______________________________
6 CYNTHIA A. FRY, Chief Judge




7 ______________________________
8 CELIA FOY CASTILLO, Judge




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