 1   This memorandum opinion was not selected for publication in the New Mexico Appellate
 2   Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished
 3   memorandum opinions. Please also note that this electronic memorandum opinion may contain
 4   computer-generated errors or other deviations from the official paper version filed by the Court
 5   of Appeals and does not include the filing date.

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

 8 STATE OF NEW MEXICO,

 9          Plaintiff-Appellee,

10 v.                                                                       No. A-1-CA-35709

11 KRISTOPHER MORGAN,

12          Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
14 Fred T. Van Soelen, District Judge

15 Hector H. Balderas, Attorney General
16 Anita Carlson, Assistant Attorney General
17 Santa Fe, NM

18 for Appellee

19 Bennett J. Baur, Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 HANISEE, Judge.
                                                                                       


 1   {1}   Defendant Kristopher Morgan appeals his conviction for possession of a

 2 controlled substance (Methamphetamine) in violation of NMSA 1978, Section

 3 30-31-23(E) (2011). Defendant contends that his rights to a speedy trial and to

 4 confront a witness were violated, and that there was insufficient evidence to

 5 support his conviction. We disagree and affirm.

 6 I.      BACKGROUND

 7   {2}   Defendant was charged with possession of a controlled substance and of

 8 drug paraphernalia after police discovered both items of contraband in Defendant’s

 9 hotel room on February 10, 2013. That day, Officers Chris McCasland and Amber

10 Salter of the Clovis Police Department responded to a report of a high volume of

11 traffic, and therefore possible narcotics activity, to and from a hotel room

12 registered in Defendant’s name. The officers arrived at the room, knocked on the

13 door, and asked Defendant, who was alone in the room, if they could enter. Once

14 permitted inside, Officer McCasland smelled an odor of marijuana and asked

15 Defendant if he “had any dope.” In response, Defendant looked at the table and

16 said that it was “all gone.” Officer McCasland then asked Defendant if other

17 people had been in his hotel room, to which Defendant responded that some of his

18 friends had been there previously.

19   {3}   After running Defendant’s identifiers through dispatch, the officers

20 discovered warrants for his arrest and placed him under arrest. While still inside


                                           2
      
                                                                                            


 1 the hotel room, Officer McCasland observed a metal pipe, hypodermic needles,

 2 and a crystal-like substance that, based on his training and experience, he

 3 recognized to be methamphetamine. Officer McCasland field tested the substance

 4 and confirmed that it was methamphetamine.

 5   {4}   Based on the foregoing facts, Defendant was arrested and on February 21,

 6 2013, and was indicted for possession of both the methamphetamine and drug

 7 paraphernalia. On March 11, 2016, Defendant filed a motion to dismiss on speedy

 8 trial grounds. Three days later the district court held a hearing on Defendant’s

 9 motion and ruled that the State had not violated Defendant’s right to a speedy trial.

10 Defendant’s trial began on March 17, 2016, after which he was convicted of both

11 counts with which he was charged. To avoid unnecessary repetition, we discuss

12 additional procedural history as necessary in our discussion of Defendant’s speedy

13 trial argument.

14   {5}   At trial, the State called two witnesses: Officer McCasland and Samuel

15 Titone. Mr. Titone, a forensic scientist with the Department of Public Safety,

16 testified regarding the results of a drug analysis he did not personally conduct and

17 that was detailed in a report he did not personally generate. Outside the presence of

18 the jury, Mr. Titone testified that based upon his review of the report, his

19 conclusion matched that of Randall Rees, the prior forensic scientist who actually

20 evaluated the drug evidence but did not testify at trial. Upon being permitted to do


                                             3
      
                                                                                           


 1 so and with the jury back in the courtroom, Mr. Titone testified that, based on his

 2 review of the raw data contained in the report, the testing instrument Mr. Rees used

 3 was clean and the substance seized from Defendant’s hotel room and tested by Mr.

 4 Rees was methamphetamine.

 5 II.     DISCUSSION

 6   {6}   Appealing only his conviction for possession of a controlled substance,

 7 Defendant argues that (1) he was denied his right to a speedy trial, (2) Mr. Titone’s

 8 testimony violated his right to confront and cross-examine Mr. Rees, and (3) the

 9 evidence was insufficient to support his conviction. We address each of

10 Defendant’s arguments in turn.

11 A.      The District Court Did Not Err in Denying Defendant’s Motion to
12         Dismiss on Speedy Trial Grounds

13   {7}   Criminal defendants in New Mexico are entitled to a speedy and public trial

14 under both the United States and New Mexico Constitutions. See U.S. Const.

15 amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a

16 speedy and public trial[.]”); N.M. Const. art. II, § 14 (“In all criminal prosecutions,

17 the accused shall have the right to . . . a speedy public trial[.]”). “Whether a

18 defendant has been deprived of the right requires a case-by-case analysis.” State v.

19 Dorais, 2016-NMCA-049, ¶ 20, 370 P.3d 771. In analyzing a defendant’s speedy

20 trial claim, we must assess “(1) the length of delay, (2) the reasons for the delay,

21 (3) the defendant’s assertion of his right, and (4) the actual prejudice to the
                                              4
      
                                                                                           


 1 defendant.” State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387

 2 (internal quotation marks and citation omitted). “Each of these factors is weighed

 3 either in favor of or against the state or the defendant, and then balanced to

 4 determine if a defendant’s right to a speedy trial was violated.” State v. Brown,

 5 2017-NMCA-046, ¶ 13, 396 P.3d 171 (alteration, internal quotation marks, and

 6 citation omitted), cert. granted, 2018-NMCERT-___ (No. S-1-SC-36385, April 26,

 7 2017). No single factor is a necessary or sufficient condition to a finding of a

 8 violation of a defendant’s right to a speedy trial, and all must be considered

 9 together with other relevant circumstances. Id. We defer to the district court’s

10 factual findings and weigh the four speedy trial factors de novo. Dorais, 2016-

11 NMCA-049, ¶ 20.

12 1.      Length of Delay

13   {8}   The “length of delay” factor helps us determine whether the delay in a

14 defendant’s case is “presumptively prejudicial” and would therefore require further

15 analysis of the remaining factors. Brown, 2017-NMCA-046, ¶ 14 (internal

16 quotation marks and citation omitted). “A delay of trial of twelve months is

17 presumptively prejudicial in simple cases[.]” State v. Flores, 2015-NMCA-081,

18 ¶ 5, 355 P.3d 81. The “long[er] the delay extends beyond this presumptively

19 prejudicial period, . . . the more heavily it will potentially weigh against the state.”

20 Id. (alteration, internal quotation marks, and citation omitted). “We calculate the


                                              5
      
                                                                                               


 1 length of delay from the time the defendant becomes an accused, that is, by a filing

 2 of a formal indictment or information or arrest and holding to answer.” Id. (internal

 3 quotation marks and citation omitted).

 4   {9}    Both Defendant and the State agree that February 10, 2013—the date of

 5 Defendant’s arrest—was the point at which Defendant’s speedy trial right attached.

 6 Additionally, both parties concede that this case was simple under our precedent.

 7 The case was brought to trial on March 17, 2016. The length of delay was therefore

 8 thirty-seven months and seven days. There being a twenty-five month delay past

 9 the presumptively prejudicial threshold, we initially conclude that the delay was

10 presumptively prejudicial and weigh the length of delay heavily against the state.

11 See State v. Gallegos, 2016-NMCA-076, ¶ 8, 387 P.3d 296 (concluding that a

12 delay of approximately twenty months past the one-year threshold for a simple

13 case is weighed heavily against the state). We thus proceed to analyze the

14 remaining factors.

15 2.       Reasons for Delay

16   {10}   Closely related to the length of delay, the State’s justification for the delay

17 “may either heighten or temper the prejudice to the defendant caused by the length

18 of the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation

19 omitted). There are four types of delay: (1) “intentional delay” is the state’s

20 deliberate attempt to delay a case in order to hamper the defense and weighs


                                               6
      
                                                                                            


 1 heavily against the state; (2) “negligent or administrative delay” weighs more

 2 lightly against the state, but weighs more heavily against the state as the length of

 3 delay increases; (3) delay justified for valid reasons, such as periods of time when

 4 the case is moving toward trial with customary promptness, is neutral and does not

 5 weigh against either party; and (4) delay caused by the defendant is weighed

 6 against the defendant. Brown, 2017-NMCA-046, ¶¶ 18, 19 (internal quotation

 7 marks and citations omitted).

 8   {11}   Our review of the record here reveals that the reasons for the trial delay

 9 appear to have been attributable to both Defendant and the State. Defendant filed a

10 motion to suppress evidence three days prior to the initial jury selection scheduled

11 for December 19, 2013. Consequently, jury selection and trial were continued. On

12 January 8, 2014, Defendant, citing the pendency of his motion to suppress, filed a

13 stipulated motion for a continuance which also purported to “waive[] time

14 completely.” In its ruling on Defendant’s speedy trial motion, the district court

15 ruled that Defendant was responsible for the delay attributable to his motion to

16 suppress up until the motion hearing on May 30, 2014. Ultimately, the district

17 court granted Defendant’s motion to suppress on June 10, 2014. For purposes of

18 speedy trial analysis, this period of time is attributable to Defendant. See State v.

19 O’Neal, 2009-NMCA-020, ¶ 21, 145 N.M. 604, 203 P.3d 135 (concluding that the

20 delay caused by the defendant’s motions is weighed against the defendant).


                                             7
      
                                                                                          


 1   {12}   Following the district court’s granting of Defendant’s motion to suppress,

 2 the State appealed to this Court, which reversed. The State appealed from the

 3 district court’s ruling on October 8, 2014, and this Court reversed on May 27,

 4 2015, and issued its mandate on October 8, 2015. See State v. Morgan, A-1-CA-

 5 No. 34183, mem. op. (N.M. Ct. App. May 27, 2015) (non-precedential).

 6   {13}   Furthermore, Defendant failed to appear at two pretrial settings—one

 7 preceding the State’s appeal and the other following the State’s appeal—which

 8 resulted in separate bench warrants and arrests. First, Defendant failed to appear at

 9 a pretrial conference on May 29, 2013, and was arrested pursuant to the district

10 court’s bench warrant on July 20, 2013. Second, Defendant failed to appear at a

11 docket call on January 26, 2016. Consequently, the district court cancelled the

12 February 5, 2016 trial and rescheduled it for March 17, 2016. We agree with the

13 district court that the approximately nine-month delay resulting from Defendant’s

14 motions and failures to appear thus weigh in the State’s favor. See State v.

15 Talamante, 2003-NMCA-135, ¶ 14, 134 N.M. 539, 80 P.3d 476 (concluding that

16 the delay resulting from a defendant’s failure to appear at a court proceeding is

17 attributable to the defendant).

18   {14}   The district court ruled that approximately fifteen months of delay were

19 attributable to the State. However, the district court weighed several periods of

20 neutral delay against the State. We conclude that the State is responsible for the


                                             8
      
                                                                                             


 1 eleven days from Defendant’s arrest to his indictment, see State v. Valencia, 2010-

 2 NMCA-005, ¶ 20, 147 N.M. 432, 224 P.3d 659 (holding that the period between a

 3 defendant’s arrest and indictment weigh against the state), the three months and

 4 twenty-eight days from when the district court initially granted Defendant’s motion

 5 to suppress on June 10, 2014, to when the State initiated its successful appeal from

 6 the district court’s ruling on October 8, 2014—during which  time the State

 7 unsuccessfully moved for the district court to reconsider—see Flores, 2015-

 8 NMCA-081, ¶ 26 (holding that a period of delay that included the state’s motion to

 9 reconsider the district court’s grant of the defendant’s motion to suppress, but not

10 its appeal of the district court’s ruling, was categorized as administrative delay to

11 be weighed against the state), and the three months and eighteen days from when

12 this Court issued its mandate to the district court to when Defendant failed to

13 appear at the January 26, 2016 docket call. See State v. Samora, 2016-NMSC-031,

14 ¶ 17, 387 P.3d 230 (holding that the time between the Supreme Court’s

15 dispositional order to the date of trial is an “administrative delay[] which weigh[s],

16 if at all, only slightly against the [s]tate”). Therefore, the approximately eight

17 months of delay attributable to the State are weighed in Defendant’s favor.

18   {15}   The remaining twenty months includes periods when the case was either

19 proceeding normally toward trial or pending during a non-frivolous appeal.

20 Therefore, this period is weighed neutrally. See Brown, 2017-NMCA-046, ¶ 19


                                             9
      
                                                                                            


 1 (holding that the period during which a case proceeds normally toward trial does

 2 not weigh against either party); Valencia, 2010-NMCA-005, ¶ 20 (concluding that

 3 the case was moving toward trial with customary promptness and would not count

 4 against the state during the period between court proceedings when the state

 5 subpoenaed its witnesses and indicated it was ready for trial); see also State v.

 6 Suskiewich, 2016-NMCA-004, ¶¶ 13, 23, 363 P.3d 1247 (holding that the time

 7 during which the state’s non-frivolous appeal is pending is not weighed against

 8 either party).

 9   {16}   We conclude that, of the delay of thirty-seven months and seven days,

10 approximately nine months weigh in the State’s favor, approximately eight months

11 weigh in Defendant’s favor, and approximately twenty months weigh as neutral

12 delay. Defendant is thus responsible for most of the non-neutral delay in his case,

13 meaning that the amount of delay here caused by the State falls approximately four

14 months short of the twelve-month presumptively prejudicial time period. Overall,

15 the reasons for the delay weigh in the State’s favor.

16 3.       Assertion of the Right

17   {17}   “The timeliness and vigor with which the right to a speedy trial is asserted

18 may be considered as an indication of whether a defendant was denied the right to

19 a speedy trial over his objection or whether the issue was raised on appeal as an

20 afterthought.” Brown, 2017-NMCA-046, ¶ 29 (alterations, internal quotation


                                             10
      
                                                                                             


 1 marks, and citation omitted). Consequently, we consider the timing and manner of

 2 a defendant’s assertion, the frequency and force of a defendant’s objections to the

 3 delay in his case, and a defendant’s actions with regard to the delay. Garza, 2009-

 4 NMSC-038, ¶ 32.

 5   {18}   Relying on counsel’s argument in his March 11, 2015 motion to dismiss,

 6 Defendant asserts that he first asserted his speedy trial right on February 15, 2013.

 7 However, we have no factual basis in the record from which we can conclude

 8 Defendant asserted his right to a speedy trial prior to October 20, 2014. See State v.

 9 Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 195 (“It is [the] defendant’s

10 burden to bring up a record sufficient for review of the issues he raises on

11 appeal.”); see also State v. Wacey C., 2004-NMCA-029, ¶ 13, 135 N.M. 186, 86

12 P.3d 611 (“Arguments of counsel are not evidence and cannot be used to prove a

13 fact.”). Moreover, in the first assertion for which we have a factual record, the

14 motion’s title was altered to remove the words “Reassertion of,” indicating to us

15 that this October 20, 2014 assertion was indeed Defendant’s first assertion.

16 Reviewing Defendant’s speedy trial argument in light of October 20, 2014—more

17 than twenty months after the date of his arrest—being the first date of his

18 expression of his desire to assert his right to a speedy trial, reinforces our

19 conclusion that substantial periods of delay are directly attributable to Defendant’s

20 motion practice and failures to appear. See State v. Montoya, 2015-NMCA-056,


                                             11
      
                                                                                            


 1 ¶ 22, 348 P.3d 1057 (“The effect of a defendant’s assertion of his speedy trial right

 2 may be diluted where his own actions caused the delay.”); Flores, 2015-NMCA-

 3 081, ¶ 31 (“[T]he force of a defendant’s assertions is mitigated where he filed

 4 motions that were bound to slow down the proceedings[.]” (internal quotation

 5 marks omitted)); State v. Moreno, 2010-NMCA-044, ¶ 33, 148 N.M. 253, 233 P.3d

 6 782 (“We recognize that generally, the closer to trial an assertion is made, the less

 7 weight it is given.”); cf. In re Darcy S., 1997-NMCA-026, ¶¶ 28, 32, 123 N.M.

 8 206, 936 P.2d 888 (“Considering the Child’s contributing delay in concluding the

 9 proceedings both prior to and following her speedy-trial demand, we believe this

10 factor should not be weighed in favor of either party.”). Given that Defendant did

11 not assert his right to a speedy trial before October 20, 2014, and that he was the

12 primary source of delay after he invoked his right, we conclude that this factor

13 does not favor Defendant.

14 4.       Prejudice

15   {19}   “The heart of the right to a speedy trial is preventing prejudice to the

16 accused.” Garza, 2009-NMSC-038, ¶ 12. The right to a speedy trial is essential to:

17 (1) preventing oppressive pretrial incarceration; (2) minimizing a defendant’s

18 anxiety and concern; and (3) limiting the possibility that the defendant will be

19 impaired in his defense. Id. Defendant bears the burden of production on this issue.

20 State v. Urban, 2004-NMSC-007, ¶ 17, 135 N.M. 279, 87 P.3d 1061. “[The


                                            12
      
                                                                                             


 1 d]efendant must make a particularized showing of prejudice to demonstrate a

 2 violation of any of the three interests.” State v. Samora, 2016-NMSC-031, ¶ 21,

 3 387 P.3d 230.

 4   {20}   Defendant first argues that he need not show prejudice, and cites several

 5 distinguishable cases in support of this argument. See Doggett v. United States, 505

 6 U.S. 647, 657-58 (1992) (holding that the defendant suffered presumptive

 7 prejudice as a result of an eight-and-one-half year delay in his case); Garza, 2009-

 8 NMSC-038, ¶ 39 (“[I]f the length of delay and the reasons for the delay weigh

 9 heavily in [the] defendant’s favor and [the] defendant has asserted his right and not

10 acquiesced to the delay, then the defendant need not show prejudice for a court to

11 conclude that the defendant’s right has been violated.”). Defendant’s case,

12 however, did not involve the kind of extraordinary length of delay at issue in

13 Doggett. Furthermore, unlike in Garza, Defendant acquiesced and participated in

14 the delay in his case, and the reasons for the delay do not weigh heavily in his

15 favor. We therefore reject this argument. In the alternative, Defendant argues that

16 he suffered from all three forms of prejudice. We address each in turn.

17   {21}   Defendant first asserts that the delay in his case resulted in a pretrial

18 incarceration of one year, five months, and five days. However, the record

19 indicates that, during at least some portion of Defendant’s pretrial incarceration, he

20 was incarcerated on another matter and had five to seven months of incarceration


                                             13
      
                                                                                           


 1 remaining for that matter. Despite having the burden of production, Defendant

 2 presented no evidence nor any argument that would allow this Court to review

 3 whether, and to what extent, he was incarcerated solely on the charges in this case.

 4 See Urban, 2004-NMSC-007, ¶ 17 (“[The d]efendant was incarcerated on other

 5 charges and thus, despite the delay, was not subject to oppressive pretrial

 6 incarceration.”). Furthermore, Defendant argues that his pretrial incarceration

 7 deprived him of the possibility of earning meritorious deductions while in the New

 8 Mexico Department of Corrections. On this account, as well, Defendant has failed

 9 to present facts that demonstrate prejudice. See State v. Salazar, 2018-NMCA-030,

10 ¶ 28, ___ P.3d ___ (rejecting a defendant’s unsupported argument that he was

11 prejudiced from pretrial incarceration when he lost the opportunity to earn good

12 time on his probation violation), cert. denied, ___ P.3d ___ (No. S-1-SC-36939,

13 Apr. 13, 2018).

14   {22}   Defendant next asserts that, because of his pretrial incarceration and the

15 resulting loss of his liberty and the opportunity to seek the rehabilitation he

16 desired, he experienced great anxiety and concern. “Because some oppression and

17 anxiety are inevitably suffered by every defendant awaiting trial, we weigh this

18 factor in the defendant’s favor only where the pretrial incarceration or the anxiety

19 suffered is undue.” Samora, 2016-NMSC-031, ¶ 21 (internal quotation marks and

20 citation omitted). Here, Defendant has not made a particularized showing of undue


                                            14
      
                                                                                             


 1 anxiety or concern. Gallegos, 2016-NMCA-076, ¶ 29, 387 P.3d 296 (concluding

 2 that the defendant did not suffer prejudice based on undue anxiety or concern when

 3 his assertions were not explained in detail and were not supported by affidavits,

 4 testimony, or documentation). Absent specific facts regarding this assertion, we

 5 will not presume it to be true.

 6   {23}   Finally, Defendant asserts that the delay impaired his defense because two of

 7 the State’s witnesses—Officer Salter and Mr. Rees—were unavailable for trial.

 8 Although Defendant states that Officer Salter was present at the time the drugs

 9 were seized and Mr. Rees performed the drug test and prepared the report in this

10 case, Defendant has failed to show with particularity how their unavailability

11 impaired his defense. See Garza, 2009-NMSC-038, ¶ 36 (“If the defendant asserts

12 that the delay caused the unavailability of a witness and impaired the defense, the

13 defendant must state with particularity what exculpatory testimony would have

14 been offered, and the defendant must also present evidence that the delay caused

15 the witness’s unavailability.” (alterations, internal quotation marks, and citations

16 omitted)).

17   {24}   We therefore conclude that Defendant has not made a cognizable showing of

18 prejudice.

19 5.       Balancing the Factors




                                              15
      
                                                                                            


 1   {25}   In sum, the length of delay weighs heavily in Defendant’s favor, the reasons

 2 for delay weigh in the State’s favor, the assertion of the right weighs in neither

 3 party’s favor, and Defendant has failed to show prejudice. On balance, we

 4 conclude that Defendant’s right to a speedy trial was not violated. See id. ¶¶ 32, 34

 5 (holding that, in the absence of a showing of prejudice, the remaining factors must

 6 weigh heavily in the defendant’s favor to conclude that the defendant’s right to

 7 speedy trial was violated); see also Gallegos, 2016-NMCA-076, ¶¶ 29, 31

 8 (concluding that there was no violation of a defendant’s speedy trial right when the

 9 length of delay weighed heavily in the defendant’s favor, he adequately asserted

10 his right, the reasons for delay did not weigh in his favor, and he made no

11 particularized showing of prejudice).

12 B.       The District Court Did Not Err in Admitting Mr. Titone’s Testimony

13   {26}   Defendant next argues that the forensic testimony of Mr. Titone violated his

14 right of confrontation. The Sixth Amendment of the United States Constitution

15 guarantees every criminal defendant “the right . . . to be confronted with the

16 witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause

17 prohibits the admission of an out-of-court statement that is both testimonial and

18 offered to prove the truth of the matter asserted “unless the declarant is unavailable

19 and the defendant had a prior opportunity to cross-examine the declarant.” State v.

20 Smith, 2016-NMSC-007, ¶ 42, 367 P.3d 420 (internal quotation marks and citation


                                             16
      
                                                                                             


 1 omitted). A statement is considered “testimonial when [its] primary purpose . . . is

 2 to establish or prove past events potentially relevant to later criminal prosecution.”

 3 State v. Navarette, 2013-NMSC-003, ¶ 8, 294 P.3d 435 (quoting Davis v.

 4 Washington, 547 U.S. 813, 822 (2006)). The Confrontation Clause prohibits the

 5 state from introducing a forensic laboratory report containing testimonial

 6 certification through the testimony of a scientist who did not sign the certification

 7 or perform or observe the test reported in the certification, unless the scientist who

 8 made the certification is unavailable at trial and the defendant had an opportunity

 9 before trial to cross-examine that scientist. Bullcoming v. New Mexico, 564 U.S.

10 647, 652 (2011). However, “an expert who has analyzed the raw data generated by

11 another analyst and who has formed independent conclusions based upon that

12 analysis may testify as to those conclusions.” State v. Huettl, 2013-NMCA-038,

13 ¶ 36, 305 P.3d 956. We review questions of “whether out-of-court statements are

14 admissible under the Confrontation Clause” de novo. State v. Largo, 2012-NMSC-

15 015, ¶ 9, 278 P.3d 532.

16   {27}   At Defendant’s trial, Mr. Titone gave his expert opinion that, based on the

17 raw data contained in Mr. Rees’s report, the substance tested was

18 methamphetamine. Defendant concedes that Mr. Titone’s testimony concerning his

19 independent review of the raw data contained in Mr. Rees’s report conforms to the

20 strictures set forth in Huettl. However, Defendant argues that Mr. Titone also


                                             17
      
                                                                                          


 1 testified that his conclusion was the same as that of Mr. Rees and that Mr. Rees

 2 followed all laboratory procedures. But our review of the record indicates that, to

 3 the extent such testimony bore the capacity to violate Defendant’s confrontation

 4 right, it was elicited outside the presence of the jury and was therefore harmless to

 5 Defendant. See State v. Rivas, 2017-NMSC-022, ¶ 52, 398 P.3d 299 (“A critical

 6 inquiry in the determination of whether a given error is harmless is the question of

 7 whether the error was likely to have affected the jury’s verdict.” (emphasis added)

 8 (internal quotation marks and citation omitted)). Defendant additionally argues that

 9 Mr. Titone testified about the procedures followed by Mr. Rees, in violation of

10 Defendant’s confrontation right. However, Mr. Titone only testified regarding his

11 own independent conclusions based on the raw data, including the “spectrometer

12 data” that showed that the instrument used to perform the test was clean. These

13 statements were admissible and do not violate the Confrontation Clause. See

14 Huettl, 2013-NMCA-038, ¶ 36 (“[A]n expert who has analyzed the raw data

15 generated by another analyst and who has formed independent conclusions based

16 upon that analysis may testify as to those conclusions.”). Accordingly, we

17 conclude that the district court did not err in admitting Mr. Titone’s testimony.

18 C.       Defendant’s Conviction Is Supported by Sufficient Evidence

19   {28}   Defendant finally argues that his conviction for possession of a controlled

20 substance was not supported by sufficient evidence because he did not have the


                                             18
      
                                                                                             


 1 methamphetamine on his person and the State was unable to establish Defendant

 2 was in constructive possession of the methamphetamine. “In reviewing the

 3 sufficiency of the evidence, we must view the evidence in the light most favorable

 4 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts

 5 in the evidence in favor of the verdict.” State v. Holt, 2016-NMSC-011, ¶ 20, 368

 6 P.3d 409 (internal quotation marks and citation omitted). “In that light, the Court

 7 determines whether any rational trier of fact could have found the essential

 8 elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks

 9 and citation omitted). “The jury instructions become the law of the case against

10 which the sufficiency of the evidence is to be measured.” Id. (alterations, internal

11 quotation marks, and citation omitted).

12   {29}   To   convict   Defendant   of    possession   of   a   controlled   substance

13 (methamphetamine), the jury was instructed that it had to find beyond a reasonable

14 doubt that: (1) “. . . Defendant had methamphetamine in his possession”; (2) “. . .

15 Defendant knew it was methamphetamine”; and (3) “[t]his happened in New

16 Mexico on or about [February 10], 2013.” Furthermore, the jury was instructed that

17 a person is in possession of methamphetamine when he exercises control over it

18 and either knows it is on his person or in his presence, or he knows where it is if

19 the substance is not in his physical presence.




                                              19
      
                                                                                            


 1   {30}   The State established that Defendant was the sole occupant of the hotel room

 2 registered in his name when the police entered the room and found

 3 methamphetamine in plain view. These facts are sufficient evidence upon which a

 4 jury could conclude that Defendant was knowingly in possession of the

 5 methamphetamine. See State v. Montoya, 1973-NMCA-060, ¶¶ 4-5, 85 N.M. 126,

 6 509 P.2d 893 (holding that there was sufficient evidence to show the defendant

 7 was knowingly in constructive possession of heroin when, without the defendant

 8 being present and after people were seen going inside for a few minutes before

 9 leaving, police searched the defendant’s motel room and found “one cap of

10 suspected heroin”); see also State v. Chandler, 1995-NMCA-033, ¶ 10, 119 N.M.

11 727, 895 P.2d 249 (“Proof of possession of illegal drugs may be established by

12 circumstantial as well as direct evidence. Possession may be actual or constructive.

13 Constructive possession exists when a defendant has knowledge of and control

14 over the drugs.” (citations omitted)).

15 CONCLUSION

16   {31}   The judgment and sentence are affirmed.

17   {32}   IT IS SO ORDERED.

18
19                                                ______________________________
20                                                J. MILES HANISEE, Judge

21 WE CONCUR:


                                             20
      
                                       



1 ____________________________
2 STEPHEN G. FRENCH, Judge


3 ____________________________
4 EMIL J. KIEHNE, Judge




                                 21
   
