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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,794

 5 RONNY T. GARCIA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    Appellant Ronny T. Garcia (Defendant) appeals from his conviction for

19 trafficking of methamphetamine. This Court’s first calendar notice proposed to affirm
 1 Defendant’s conviction. Defendant filed a memorandum in opposition to the proposed

 2 disposition. We are not persuaded by Defendant’s arguments and affirm the judgment

 3 and sentence.

 4   {2}   Defendant continues to argue there was insufficient evidence that he transferred

 5 methamphetamine to another. Defendant disputes the evidence to support the statutory

 6 element of transferring methamphetamine under NMSA 1978, § 30-31-20 (2006).

 7 This Court’s first calendar notice proposed to affirm on the basis that the confidential

 8 informant’s (CI) testimony, as asserted in the docketing statement, that Defendant

 9 handed the CI methamphetamine and that the CI paid Defendant money for it, was

10 sufficient evidence. [CN 3; DS 2] Defendant maintains that he could not have

11 transferred methamphetamine to another because it was not his, he had no control over

12 it at any point, and therefore could not have transferred it to the CI. [MIO 4]

13 Defendant asserts that the woman in the room left the drugs on the table for the CI and

14 collected the money from the sale. [MIO 2] Defendant also continues to point to the

15 preliminary hearing where the CI testified that the baggie was laying on the coffee

16 table when he entered the room and it was not handed to him by Defendant. [MIO 3]

17   {3}   Defendant argues that without establishing possession or control, the State

18 could not prove he transferred the drugs. In addition to the evidence discussed above,

19 it appears from the record that the CI also testified that Defendant contacted him the

                                               2
 1 day of the controlled buy, said he had methamphetamine, and set up the buy. [RP 70,

 2 72] The CI’s testimony was sufficient evidence that Defendant transferred

 3 methamphetamine. See NMSA 1978, § 30-31-20(A)(2)(c) (2006) (defining “traffic”

 4 as distribution or sale); see also NMSA 1978, § 30-31-2(G)&(J) (2009) (defining

 5 “deliver” and “distribute” of a controlled substance). It was for the jury to resolve any

 6 conflicts in the evidence and to determine the weight and credibility of the evidence.

 7 See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing

 8 that it is for the fact finder to resolve any conflict in the testimony of the witnesses and

 9 to determine where the weight and credibility lay). To the extent Defendant challenges

10 the credibility of that testimony, we do not “weigh the evidence and may not substitute

11 [our] judgment for that of the fact finder so long as there is sufficient evidence to

12 support the verdict.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753

13 P.2d 1314; see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

14 829 (resolving all disputed facts in favor of the guilty verdict, indulging all reasonable

15 inferences in support of the verdict and disregarding all evidence to the contrary).

16   {4}   In addition to arguing that there was insufficient evidence that he transferred

17 methamphetamine to another, Defendant argues that the State failed to prove he knew

18 it was methamphetamine. [MIO 4-5] On appeal, this Court “view[s] the evidence in

19 the light most favorable to the guilty verdict, indulging all reasonable inferences and

                                                3
 1 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

 2 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. While the CI’s testimony was

 3 equivocal regarding whether he took the drugs from the table or they were handed to

 4 him directly by Defendant, his testimony that he handed Defendant the money was

 5 sufficient evidence of knowledge, as well as control. See State v. Jimenez, 2004-

 6 NMSC-012, ¶ 14, 135 N.M. 442, 90 P.3d 461 (stating that we must accept “all

 7 reasonable inferences . . . and disregard all inferences to the contrary.” (internal

 8 quotation marks and citation omitted)). To the extent Defendant asserts that he had no

 9 knowledge of the methamphetamine, the jury was free to reject defense counsel’s

10 explanation of Defendant’s actions and to make its own inferences based on the

11 evidence. See, e.g., State v. Coffin, 1999-NMSC-038, ¶ 77, 128 N.M. 192, 991 P.2d

12 477. We therefore conclude that there was sufficient evidence to allow the jury to find

13 that Defendant knew it was methamphetamine. See State v. Chandler, 1995-NMCA-

14 033, ¶ 14, 119 N.M. 727, 895 P.2d 249 (holding that jury is free to “use their common

15 sense to look through testimony and draw inferences from all the surrounding

16 circumstances” (internal quotation marks and citation omitted)).

17   {5}   Defendant also continues to argue that the district court erred in admitting the

18 audio tape of the controlled buy. [DS 4] This Court’s first calendar notice proposed

19 to affirm, in part, on the basis that Defendant failed to indicate whether he preserved

20 these claims by specifically objecting on these grounds below. State v. Varela, 1999-

                                               4
 1 NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating the purpose of preservation).

 2 Defendant repeats the general assertions in the docketing statement that he objected

 3 to the tape on the basis that an insufficient foundation had been laid for its admission,

 4 [DS 3, MIO 2] but it appears from the record that Defendant only objected on hearsay

 5 grounds. [RP 63-67, 70] Prior to trial, counsel indicated he had an issue with what was

 6 described as the “video” of the controlled buy and indicated he would file a motion

 7 if the court wanted, but there appears to be no such motion in the record. [RP 53]

 8   {6}   Nevertheless, Defendant failed to meet his burden of demonstrating error.

 9 Defendant argued that there was little to no evidence presented concerning the type

10 of equipment used, the expertise of the equipment’s operator, the quality of the

11 recording, or the chain of custody leading up to trial. [DS 3] This Court’s first

12 calendar notice proposed to affirm, in part, on the basis that the docketing statement

13 did not indicate what “little” evidence was presented in support of the elements he

14 challenged. The memorandum in opposition does not provide the evidence requested

15 but instead repeats the same argument made in the docketing statement. [MIO 2] See

16 State v. Ibarra, 1993-NMCA-040, ¶ 11, 116 N.M. 486, 489, 864 P.2d 302 (“A party

17 opposing summary disposition is required to come forward and specifically point out

18 errors in fact and/or law.”). Insofar as Defendant continues to assert that no chain of

19 custody was established, “[q]uestions concerning a possible gap in the chain of

20 custody affects the weight of the evidence, not its admissibility.” State v. Peters, 1997-

                                               5
 1 NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896. And to the extent he asserts the audio

 2 was hearsay, we disagree. See State v. Castillo-Sanchez, 1999-NMCA-085, ¶ 23, 127

 3 N.M. 540, 984 P.2d 787 (recognizing that another person’s statements in a recorded

 4 conversation containing an admission by the defendant were admissible because they

 5 were needed to put the defendant’s statements in context).

 6   {7}   Last, Defendant continues to argue that the district court erred by admitting the

 7 lab report into evidence because it was cumulative of the analyst’s testimony. [DS 4]

 8 See State v. Franklin, 1967-NMSC-151, ¶¶ 9-10, 78 N.M. 127, 428 P.2d 982; State

 9 v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. Defendant reasserts the

10 argument that the lab report was cumulative once the substance was identified by the

11 lab analyst’s testimony. [MIO 8] Defendant has failed to demonstrate clear abuse by

12 the district court in admitting the lab report. See State v. Sarracino, 1998-NMSC-022,

13 ¶ 20, 125 N.M. 511, 964 P.2d 72 (“We review the admission of evidence under an

14 abuse of discretion standard and will not reverse in the absence of a clear abuse.”); see

15 also State v. Johnson, 2004-NMSC-029, ¶ 38, 136 N.M. 348, 98 P.3d 998 (stating that

16 evidence of a different kind to prove the same fact, is not cumulative).

17   {8}   For all of the above reasons and those stated in the first notice of proposed

18 disposition, we affirm the judgment and sentence.

19   {9}   IT IS SO ORDERED.



                                               6
1                               __________________________________
2                               LINDA M. VANZI, Judge

3 WE CONCUR:



4 _________________________________
5 JAMES J. WECHSLER, Judge



6 _________________________________
7 MICHAEL D. BUSTAMANTE, Judge




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