 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 27,166

10 RUBEN LARA,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Don Maddox, District Judge

14 Gary K. King, Attorney General
15 Nicole Beder, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Chief Public Defender
19 Eleanor Brogan, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 WECHSLER, Judge.
 1        Defendant appeals his convictions for one count of trafficking a controlled

 2 substance (cocaine) and possession of drug paraphenalia and two counts of possession

 3 of a controlled substance (methamphetamine and marijuana).               In a previous

 4 memorandum opinion, we affirmed Defendant’s convictions. State v. Lara, No.

 5 27,166, slip op. (N.M. Ct. App. May 14, 2009). Our Supreme Court granted a writ of

 6 certiorari to determine whether the district court violated Defendant’s confrontation

 7 rights in admitting as evidence the report of a non-testifying Department of Public

 8 Safety Southern Forensic Laboratory (Crime Lab) forensic analyst and by allowing

 9 testimony regarding the report by a forensic analyst not involved in preparing the

10 report. After deciding State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d

11 1280, our Supreme Court remanded this case to this Court to reconsider our decision

12 in light of Aragon. Because Defendant failed to preserve his confrontation claim and

13 the admission of the report and testimony did not rise to the level of fundamental

14 error, we affirm.

15 BACKGROUND

16        Defendant was convicted of one count of trafficking cocaine and one count each

17 of possession of drug paraphernalia, methamphetamine, and marijuana.

18        At trial, Eric Young, a forensic analyst at the Crime Lab, testified regarding the

19 result of a drug analysis performed by another forensic analyst at the Crime Lab,


                                              2
 1 Danielle Elenbaas. Young testified that Elenbaas conducted a drug analysis on the

 2 State’s Exhibits 2-7. He testified that Elenbaas concluded that Exhibits 6 and 7 were

 3 cocaine, Exhibits 3, 4, and 5 were methamphetamine, and Exhibit 2 was marijuana.

 4 Although Young testified as to the procedures used by analysts at the Crime Lab, he

 5 testified that he had no personal knowledge of how Elenbaas conducted the analysis

 6 in this case, and he only reviewed her report. Following the testimony, defense

 7 counsel moved to strike the testimony, arguing that Young “does not have sufficient

 8 knowledge necessary to provide the essential elements of the hearsay exception.” The

 9 district court overruled the objection, holding that the report and testimony were

10 admissible under the business records exception.

11 PRESERVATION AND STANDARD OF REVIEW

12        While Defendant argues that his general hearsay objection preserved his

13 confrontation clause argument, in our previous memorandum opinion, we determined

14 that Defendant asserted for the first time on appeal that Young’s testimony violated

15 his right to confrontation. Indeed, Defendant’s general hearsay objection and failure

16 to invoke a ruling on whether his confrontation rights were violated did not preserve

17 Defendant’s confrontation claim. See State v. Lucero, 104 N.M. 587, 591, 725 P.2d

18 266, 270 (Ct. App. 1986) (holding that a hearsay objection was not sufficiently

19 specific to alert the district court to preserve a confrontation claim). We therefore


                                             3
 1 review Defendant’s claim for fundamental error. See State v. Bullcoming, 2010-

 2 NMSC-007, ¶ 41, 147 N.M 487, 226 P.3d 1 (holding that “because counsel did not

 3 object under the Confrontation Clause in the trial court, this Court must review the

 4 issue under fundamental error”), cert. granted, Bullcoming v. New Mexico, __ U.S. __,

 5 131 S. Ct. 62 (2010).

 6        “Fundamental error only applies in exceptional circumstances when guilt is so

 7 doubtful that it would shock the judicial conscience to allow the conviction to stand.”

 8 Bullcoming, 2010-NMSC-007, ¶ 41 (internal quotation marks and citation omitted).

 9 Fundamental error also applies when substantial justice has not been served to the

10 extent that judicial integrity is undermined, regardless of the apparent guilt of the

11 defendant. State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d

12 176.

13 CONFRONTATION CLAUSE

14        In our previous memorandum opinion, we relied on State v. Delgado, 2009-

15 NMCA-061, 146 N.M. 402, 210 P.3d 828, overruled by Aragon, 2010-NMSC-008,

16 ¶ 19, and held that Elenbaas’ report was admissible under the business records

17 exception to the hearsay rule. We further held that Young’s testimony, as opposed

18 to testimony from Elenbaas, did not violate Defendant’s right to confrontation. Our

19 Supreme Court has since overruled Delgado in Aragon, 2010-NMSC-008, ¶ 19. In


                                              4
 1 Aragon, our Supreme Court held that the admission of a report authored by a non-

 2 testifying forensic analyst and the trial testimony of an analyst who did not prepare

 3 the report violated the defendant’s right to confrontation. Id. However, despite the

 4 confrontation clause violation, the Court affirmed the defendant’s conviction for

 5 possession of a controlled substance because the confrontation clause violation was

 6 harmless error. Id. ¶ 36.

 7        Our present case is indistinguishable from Aragon, and the admission of the

 8 Elenbaas’ report without her accompanying testimony violated Defendant’s

 9 confrontation rights. Nevertheless, we hold that the admission of the report and

10 Young’s testimony did not rise to the level of fundamental error because there was

11 sufficient evidence, even without Elenbaas’ report and Young’s testimony, for a jury

12 to find Defendant guilty. See State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148,

13 150 (1970) (“If there is substantial evidence . . . to support the verdict of the jury, we

14 will not resort to fundamental error.”).

15         Officer John Martinez, one of the officers who responded to the scene, testified

16 that he conducted a field test on either the State’s Exhibit 6 or 7 and that the exhibit

17 tested positive for cocaine. He further testified that Defendant possessed a crack pipe

18 and a large amount of currency. After questioning, Defendant admitted to Officer

19 Martinez that he sold illegal narcotics and that substances found hidden underneath


                                               5
 1 a vehicle belonged to him. Therefore, even without the testimony of Young or

 2 Elenbaas’ report, there was sufficient evidence presented to the jury to convict

 3 Defendant of trafficking cocaine and possessing drug paraphernalia and illegal

 4 narcotics. Defendant’s guilt was not so doubtful as to shock the conscience of this

 5 Court, and, therefore, there was no fundamental error. See State v. Johnson, 2010-

 6 NMSC-016, ¶ 25, 148 N.M. 50, 229 P.3d 523 (“Fundamental error only applies in

 7 exceptional circumstances when guilt is so doubtful that it would shock the judicial

 8 conscience to allow the conviction to stand.” (internal quotation marks and citation

 9 omitted)).

10        Moreover, Defendant never challenged the reliability of Elenbaas’ report and

11 the identification of the exhibits as cocaine, methamphetamine, and marijuana. There

12 cannot be fundamental error when the error only affects an undisputed issue or

13 element in the case. Cf. State v. Castro, 2002-NMCA-093, ¶ 2, 132 N.M 646, 53 P.3d

14 413 (“[E]rror in submitting an instruction omitting an essential element is harmless

15 where a reviewing court concludes beyond a reasonable doubt that the omitted

16 element was uncontested[.]” (internal quotation marks and citation omitted)). While

17 Defendant asserts that “[t]here is a high probability that [Defendant’s] case would

18 have turned out differently,” Defendant does not provide specifics as to how Elenbaas’

19 testimony would have affected the verdict. Defendant never argued that the report


                                             6
 1 was unreliable, and his defense theory was never that the substances were not

 2 narcotics. As opposed to challenging the identification of the substances as narcotics,

 3 Defendant’s theory throughout the case was that the substances did not belong to him.

 4 Indeed, defense counsel stated that “[t]here’s not going to be any dispute that there

 5 were some items found, some contraband that were found.”

 6        Defendant also argues that because New Mexico courts followed State v.

 7 Dedman, 2004-NMSC-037, ¶¶ 30, 46, 136 N.M. 561, 102 P.3d 628 (holding that

 8 Scientific Laboratory Division blood alcohol report was non-testimonial and therefore

 9 not subject to a confrontation clause challenge), overruled by Bullcoming, 2010-

10 NMSC-007, ¶ 16, prior to Aragon and Bullcoming, Defendant’s objection to Young’s

11 testimony and Elenbaas’ report on confrontation clause grounds would have been

12 futile. Defendant cites Commonwealth v. Vasquez, 923 N.E.2d 524, 528 (Mass. 2010)

13 (holding that a defendant who failed to preserve confrontation clause argument was

14 entitled to review as if argument was preserved by proper objection because the law

15 in effect at the time of the trial would have made objection futile), in arguing that we

16 should address Defendant’s confrontation clause claim as if it was properly preserved.

17 If we were to accept Defendant’s argument, we would apply the harmless error

18 standard instead of fundamental error analysis to the violation of Defendant’s

19 confrontation rights. See Aragon, 2010-NMSC-008, ¶¶ 34-36 (holding that admission


                                              7
 1 of a report by non-testifying forensic analyst and trial testimony by another analyst

 2 violated the defendant’s confrontation rights but that the error was harmless).

 3        If Defendant properly preserved his confrontation claim, the admission of

 4 Elenbaas’ report and Young’s testimony was harmless error. “A reviewing court

 5 should only conclude that a constitutional error is harmless when there is no

 6 reasonable possibility it affected the verdict.” Id. ¶ 35 (alterations, internal quotation

 7 marks, and citation omitted). We consider three non-determinative factors in applying

 8 harmless error analysis: whether (1) absent the improper evidence there is sufficient

 9 evidence to support the convictions, (2) there is a disproportionate volume of

10 permissible evidence compared to improper evidence, and (3) there is conflicting

11 evidence to discredit the improper evidence. Id. We weigh these factors and uphold

12 the conviction only if we conclude with the requisite level of certainty that the error

13 did not contribute to the verdict. Id.

14        While there was not a disproportionate volume of permissible evidence that the

15 substances were narcotics and therefore the second harmless error factor weighs in

16 Defendant’s favor, the first and third factors weigh in favor of the State. As to the

17 first factor, as we determined in our fundamental error analysis, sufficient evidence

18 supports Defendant’s convictions. Moreover, the third factor weighs heavily in the

19 State’s favor. Defendant did not present conflicting evidence as to whether Exhibits


                                               8
 1 2-7 were narcotics or that Elenbaas’ report was unreliable or flawed in any way.

 2 Indeed, Defendant’s theory throughout the case was that the substances did not belong

 3 to him. The admission of Elenbaas’ report and Young’s testimony was therefore

 4 harmless error. See State v. McDonald, 2004-NMSC-033, ¶ 12, 136 N.M. 417, 99

 5 P.3d 667 (holding that error was harmless when there was sufficient evidence at trial

 6 that was “essentially uncontested”).

 7 CONCLUSION

 8        Because we conclude that the admission of Elenbaas’ report into evidence

 9 without her accompanying testimony and Young’s testimony regarding Elenbaas’

10 report was not fundamental error, or alternatively was harmless error, we affirm.

11        IT IS SO ORDERED.



12                                               ________________________________
13                                               JAMES J. WECHSLER, Judge

14 WE CONCUR:



15 __________________________________
16 CELIA FOY CASTILLO, Chief Judge



17 __________________________________
18 CYNTHIA A. FRY, Judge

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