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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                         NO. 27,234

 5 JACKSON OREN GARDNER,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Thomas J. Hynes, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 Ralph E. Trujillo, Assistant Attorney General
12 Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Joseph P. Walsh, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                             MEMORANDUM OPINION

19 WECHSLER, Judge.

20       Defendant Jackson Oren Gardner appeals his convictions for possession of

21 methamphetamine and possession of drug paraphernalia. On appeal, Defendant
 1 contends that (1) the district court erred in admitting the laboratory report of a forensic

 2 scientist into evidence, (2) the district court improperly prohibited him from pursuing

 3 a relevant line of questioning with the forensic scientist regarding the quality and

 4 quantity of the methamphetamine tested, and (3) the State failed to present evidence

 5 sufficient to support his convictions. We affirm.

 6 BACKGROUND

 7        In February 2006, the Farmington Police Department’s dispatch contacted

 8 Sergeant Keith McPheeters and informed him that Defendant was inside a retail store

 9 in Farmington and had an outstanding arrest warrant. Sergeant McPheeters then

10 located Defendant and arrested him. While performing a search incident to arrest,

11 Sergeant McPheeters discovered that Defendant was carrying a small tin container that

12 held a substance that he presumed to be methamphetamine. Sergeant McPheeters also

13 discovered that Defendant was carrying plastic baggies, a small scale, and a long glass

14 pipe. Defendant was subsequently charged with possession of methamphetamine and

15 possession of drug paraphernalia.

16        At trial, James Midkiff, a forensic scientist employed at the Northern Forensic

17 Laboratory of the New Mexico Department of Public Safety, testified regarding the

18 analysis that he performed on the substance that Sergeant McPheeters confiscated


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 1 from Defendant.       Midkiff provided testimony about the procedure that he

 2 implemented in creating drug analysis reports, and then the State moved to admit

 3 Midkiff’s laboratory report regarding the substance that Sergeant McPheeters found

 4 in Defendant’s possession. Defendant initially objected on the grounds of lack of

 5 foundation, relevance, and hearsay. The district court admitted the laboratory report

 6 under the business records exception to the hearsay rule, see Rule 11-803(F) NMRA,

 7 and Midkiff proceeded to testify about the tests that he performed on the substance

 8 found in Defendant’s possession and concluded that it was 0.11 grams of

 9 methamphetamine.

10        Following Midkiff’s testimony on direct examination, the jury was temporarily

11 excused, and Defendant reiterated his request to the district court to cross-examine

12 Midkiff regarding the topic of quantitative testing. Although the district court denied

13 Defendant’s request, concluding that testimony regarding Midkiff’s failure to

14 quantitatively test (in other words, test the purity of) the substance that he determined

15 to be methamphetamine would only serve to confuse the jury, Defendant was

16 permitted to make an offer of proof outside the presence of the jury. Defendant’s

17 offer of proof indicated that Midkiff’s laboratory does not perform quantitative testing

18 to determine the percentage of purity of the substances that it tests, that Midkiff did


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 1 not believe that quantitative testing would have “increased scientific reliability,” and

 2 that Midkiff only tested the substance found in Defendant’s possession to determine

 3 if it was a controlled substance of any percentage of purity. Following Defendant’s

 4 offer of proof, the jury returned to the courtroom, and Defendant was permitted to

 5 cross-examine Midkiff on topics other than his failure to perform quantitative testing.

 6        Ultimately, the jury convicted Defendant of possession of methamphetamine

 7 and possession of drug paraphernalia. This appeal followed.

 8 ADMISSIBILITY OF LABORATORY REPORT

 9        Defendant first argues that the district court erred in admitting Midkiff’s

10 laboratory report into evidence because it constituted inadmissible hearsay. “We

11 review the admission of evidence under an exception to the hearsay rule with

12 deference to the trial court’s discretion; we review to determine whether there has

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

14 N.M. 459, 64 P.3d 486. We will not conclude that the district court “abused its

15 discretion by its ruling unless we can characterize it as clearly untenable or not

16 justified by reason.” State v. Mora, 2003-NMCA-072, ¶ 8, 133 N.M. 746, 69 P.3d

17 256 (internal quotation marks and citation omitted).

18        The district court admitted Midkiff’s laboratory report into evidence under the


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 1 business records exception to the hearsay rule. See Rule 11-803(F). The business

 2 records exception to the hearsay rule provides that the following documents are

 3 admissible:

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

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

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

13 trustworthiness.” Id. On appeal, Defendant principally argues the inapplicability of

14 the public records exception to the hearsay rule. The public records exception permits

15 the admission of “[r]ecords, reports, statements or data compilations, in any form, of

16 public offices or agencies” that set forth “the activities of the office or agency” or

17 “matters observed pursuant to duty imposed by law as to which matters there was a

18 duty to report, excluding, however, in criminal cases matters observed by police

19 officers and other law enforcement personnel.” Rule 11-803(H)(1)-(2).

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

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


                                              5
 1 App. 1995), this Court held that a blood alcohol report created by an employee of the

 2 Scientific Laboratory Division of the New Mexico Department of Health was

 3 admissible under both the business records and public records exceptions to the

 4 hearsay rule. Defendant essentially offers no argument against the admission of the

 5 report as a business record based on the plain language of Rule 11-803(F), and our

 6 review of the trial transcript revealed that, as in Christian, a sufficient foundation for

 7 that exception was laid and that there was no indication elicited at trial that called into

 8 question the trustworthiness of Midkiff’s laboratory report. See Christian, 119 N.M.

 9 at 780-81, 895 P.2d at 680-81. As in State v. Delgado, 2009-NMCA- ___, ¶ 10, ___

10 N.M. ___, ___ P.3d ___ (No. 27,192, May 14, 2009), the crux of Defendant’s

11 argument is that the district court’s admission of Midkiff’s laboratory report into

12 evidence was reversible error because it “allow[ed] the State to prove its case through

13 a report generated by a police agency during the investigation under the guise of an

14 ordinary business record.” See Delgado, 2009-NMCA- ___, ¶ 10. However, as we

15 stated in Delgado, even if we were to accept Defendant’s assertion that Northern

16 Forensic Laboratory of the New Mexico Department of Public Safety is a “police

17 agency,” Christian expressly dictates that “even documents prepared by the state

18 police crime laboratory can satisfy the public records exception where an adequate


                                                6
 1 foundation for reliability is laid.” Christian, 119 N.M. at 781, 895 P.2d at 681; see

 2 Delgado, 2009-NMCA- ___, ¶ 11. As we have noted above, Defendant offers no

 3 compelling argument alleging that an improper foundation for Midkiff’s laboratory

 4 report was laid or that the report was in any way unreliable. We therefore conclude

 5 that the district court did not abuse its discretion in admitting Midkiff’s laboratory

 6 report into evidence.

 7 EXCLUSION OF QUANTITATIVE TESTING TESTIMONY

 8        Defendant next argues that the district court erred in prohibiting him from

 9 cross-examining Midkiff in front of the jury regarding the lack of quantitative testing

10 on the substance confiscated from Defendant. Although Defendant seems to suggest

11 in his brief in chief that the district court prevented any and all testimony concerning

12 Defendant’s assertion that the sample that Midkiff tested had been contaminated, it

13 appears that the only testimony of Midkiff that the district court excluded was

14 testimony concerning the specific subject of quantitative testing.

15        A district court is permitted to exclude, sua sponte, the testimony of a witness,

16 provided that the parties are first informed of the decision and the district court’s

17 “specific concerns” so that the proponent of the evidence is afforded “a fair

18 opportunity to respond to the court’s concerns and to make the necessary offer of


                                              7
 1 proof.” State v. Balderama, 2004-NMSC-008, ¶ 20, 135 N.M. 329, 88 P.3d 845. We

 2 review such an exclusion for an abuse of discretion and consider whether “the ruling

 3 is clearly against the logic and effects of the facts and circumstances of the case, is

 4 clearly untenable, or is not justified by reason.” Id. ¶ 22. In undertaking our review,

 5 we must consider whether the excluded testimony was relevant and, if relevant,

 6 whether the reason given by the district court for the exclusion was proper. Id.

 7        This issue arose at trial following the State’s direct examination of Midkiff and

 8 after the jury had been dismissed for a brief recess. In response to Defendant’s

 9 request, the district court informed Defendant that he would not be permitted to cross-

10 examine Midkiff on the topic of quantitative testing because such questioning would

11 “do nothing but confuse the jury.” However, the district court permitted Defendant

12 to make an offer of proof so that he could make a record for appeal.

13        According to Midkiff’s responses during Defendant’s offer of proof,

14 quantitative testing can be performed to determine “the percentage of purity” of a

15 tested substance. Midkiff also stated that although the Southern Forensic Laboratory

16 receives federal funding to perform quantitative testing, such testing is not performed

17 at the Northern Forensic Laboratory. Finally, Midkiff stated that he tested the

18 substance confiscated from Defendant for “any” presence of methamphetamine and


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 1 that performing quantitative testing would not have led to “increased scientific

 2 reliability.”

 3        We interpret the district court’s concern that testimony regarding quantitative

 4 testing would “confuse the jury” as an invocation of Rule 11-403 NMRA. Rule 11-

 5 403 allows for the exclusion of otherwise relevant evidence if, among other things, the

 6 danger of “confusion of the issues or misleading the jury” substantially outweighs the

 7 probative value of the offered evidence. Based on our review of Midkiff’s testimony

 8 during Defendant’s offer of proof, we cannot say that the district court abused its

 9 discretion in excluding testimony regarding quantitative testing. It appears that

10 Midkiff’s lack of quantitative testing had absolutely no bearing on whether the

11 substance       confiscated from Defendant was, in fact, determined to be

12 methamphetamine. As the district court noted, a determination of the percentage of

13 purity of the methamphetamine found in the substance tested, as long as some amount

14 of methamphetamine was discovered, would have been irrelevant for purposes of

15 Defendant’s criminal liability. See NMSA 1978, § 30-31-23(D) (2005). Furthermore,

16 we note that Defendant was permitted to undertake a lengthy cross-examination of

17 Midkiff in which he primarily focused on Midkiff’s alleged inadequacies in

18 performing the tests on the substance confiscated from Defendant in furtherance of his


                                              9
 1 theory that the substance had become contaminated with trace amounts of

 2 methamphetamine while in the laboratory. We conclude that the district court did not

 3 abuse its discretion.

 4 SUFFICIENCY OF THE EVIDENCE

 5        Finally, Defendant argues that the evidence presented at his trial was

 6 insufficient to support his convictions. In addressing Defendant’s argument, “[w]e

 7 must view the evidence in the light most favorable to the State, resolving all conflicts

 8 and indulging all permissible inferences in favor of the verdict[s,]” and we must

 9 conduct our review “to determine whether any rational jury could have found the

10 essential facts to establish each element of the crime[s] beyond a reasonable doubt.”

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

12        Defendant was convicted of one count of possession of methamphetamine, see

13 § 30-31-23(D), and one count of possession of drug paraphernalia, see NMSA 1978,

14 § 30-31-25.1(A) (2001). At Defendant’s trial, Sergeant McPheeters testified that he

15 found a long glass pipe, plastic baggies, a digital scale, and a small tin container that

16 held a “crystalline substance.” Next, Midkiff testified that he performed tests on the

17 substance found in the tin container and that he concluded that it was 0.11 grams of

18 methamphetamine. The jury subsequently considered the evidence and concluded that


                                              10
 1 Defendant knowingly possessed methamphetamine and drug paraphernalia. Defendant

 2 offers no explanation in support of an argument that no rational jury could have found

 3 him guilty on both counts. Therefore, considering the evidence in the light most

 4 favorable to the verdicts, we conclude that Defendant’s convictions were adequately

 5 supported by the evidence presented at his trial.

 6 CONCLUSION

 7        We affirm.

 8        IT IS SO ORDERED.



 9                                               _______________________________
10                                               JAMES J. WECHSLER, Judge

11 WE CONCUR:




12 ______________________________
13 CYNTHIA A. FRY, Chief Judge




14 ______________________________
15 CELIA FOY CASTILLO, Judge




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