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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. A-1-CA-34794

 5 ADAM MARTINEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
 8 H.R. Quintero, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Tania Shahani, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   Defendant Adam Martinez appeals the following convictions: receiving or

 2 transferring a stolen motor vehicle, pursuant to NMSA 1978, Section 30-16D-4(A)

 3 (2009); resisting, evading or obstructing an officer, pursuant to NMSA 1978, Section

 4 30-22-1(B) (1981); and possession of drug paraphernalia, pursuant to NMSA 1978,

 5 Section 30-31-25.1(A) (2001). Seeking a new trial, Defendant raises four evidentiary

 6 issues on appeal: (1) the district court erred by allowing lay (as opposed to requiring

 7 expert) testimony regarding a spoon found in Defendant’s possession and its

 8 connection to drug use; (2) there was insufficient evidence to support a finding that

 9 the spoon was drug paraphernalia; (3) the district court erred by improperly admitting

10 a stolen vehicle report and supporting testimony in violation of the best evidence rule;

11 and (4) the district court erred by allowing an officer’s police report and supporting

12 testimony to be placed before the jury after late disclosure of the document. We reject

13 Defendant’s claims and affirm.

14   {2}   Because this is a memorandum opinion and the parties are familiar with the

15 facts, we will not restate them here. Additional facts will be provided as necessary.

16 We begin with the first two of Defendant’s arguments.

17   The District Court Did Not Err by Allowing Lay Testimony Concerning the Use
18   of a Spoon and Its Connection to Drug Use, and the Evidence was Sufficient to
19   Find That the Spoon Was Drug Paraphernalia for Defendant’s Possession
20   Charge




                                              2
 1   {3}   Count 4 of the criminal information charged Defendant with possession of drug

 2 paraphernalia, specifically “one spoon [with] white burnt residue . . . to ingest, inhale

 3 or otherwise introduce into the human body, a controlled substance[.]” Defendant

 4 asserts that lay witness testimony identifying the methamphetamine found on

 5 Defendant’s person was insufficient to establish that it was a controlled substance.

 6 Specifically, Defendant argues that the police officer’s lay testimony was insufficient

 7 to establish the nature of the substance found on Defendant’s person and that the white

 8 powdery substance found on the spoon could only be established as methamphetamine

 9 through competent expert testimony, pursuant to Rule 11-702 NMRA. The district

10 court, Defendant contends, abused its discretion in admitting the officer’s testimony

11 to provide a nexus between the spoon and its use as an instrumentality for the

12 “ingestion of narcotics” under Rule 11-702. According to Defendant, the jury could

13 not properly determine that the “white residue substance” found on the spoon in

14 Defendant’s possession rendered the spoon drug paraphernalia. Relying in part on his

15 argument that the State failed to properly show that the substance on the spoon was

16 a controlled substance, Defendant also generally challenges the sufficiency of the

17 evidence to support his conviction for possession of drug paraphernalia. Although

18 Defendant presents these arguments as two separate issues, Defendant’s first issue is




                                               3
 1 subsumed by the general challenge to the sufficiency of the evidence. Hence, we

 2 address them together.

 3   {4}   “An abuse of discretion occurs when the ruling is clearly against the logic and

 4 effect of the facts and circumstances of the case. We cannot say the [district] court

 5 abused its discretion by its ruling unless we can characterize [the ruling] as clearly

 6 untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M.

 7 438, 971 P.2d 829 (internal quotation marks and citations omitted). In reviewing the

 8 sufficiency of the evidence, we must determine whether substantial evidence, either

 9 direct or circumstantial, exists to support a verdict of guilty beyond a reasonable doubt

10 for every essential element of the crime at issue. See id. ¶ 19. The evidence is

11 reviewed in the light most favorable to the verdict, resolving all conflicts and

12 indulging all permissible inferences to uphold the conviction and disregarding all

13 evidence and inferences to the contrary, to ensure that a rational jury could have found

14 each element of the crime established beyond a reasonable doubt. See id.

15   {5}   Our case law is clear that “expert testimony is not required to identify illegal

16 drugs.” State v. Gerald B., 2006-NMCA-022, ¶ 23, 139 N.M. 113, 129 P.3d 149. Such

17 opinion testimony is admissible, and “the qualifications of the witness go to weight

18 and not admissibility.” State v. Rubio, 1990-NMCA-090, ¶ 5, 110 N.M. 605, 798 P.2d

19 206.



                                               4
 1   {6}   Here, the officer’s law enforcement experience and training qualified him to

 2 offer his lay opinion regarding the identity of the substance discovered on the spoon.

 3 See id. ¶ 8 (“The identity of a controlled substance may further be established by

 4 persons having lay experience with the drug through prior use, trading, or law

 5 enforcement.”); see also State v. Gadbury, No. A-1-CA-34857, mem. op. ¶ 23 (N.M.

 6 Ct. App. Apr. 11, 2018) (non-precedential) (same). Officer Quintana’s testimony

 7 concerning his experience in dealing with items commonly used as drug

 8 paraphernalia, including spoons, used to assist in liquefying and ingesting narcotics,

 9 was therefore properly admitted as lay opinion. See State v. Dobbs, 1983-NMCA-033,

10 ¶ 35, 100 N.M. 60, 665 P.2d 1151 (explaining that lay opinion as to the identification

11 of a substance and “qualifications of the witness [go] to the weight and not the

12 admissibility”), rev’d on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37

13 n.6, 275 P.3d 110. Thus, we conclude that the district court did not abuse its discretion

14 in admitting the officer’s testimony regarding the significance of the spoon and its

15 common use as drug paraphernalia for the jury’s consideration.

16   {7}   Other properly admitted evidence, in addition to the spoon and the officer’s

17 testimony, sufficiently supports Defendant’s conviction for possession of drug

18 paraphernalia. During a pat-down of Defendant, officers found him in possession of

19 two small bags containing a “white crystalline substance.” Officer Quintana also



                                               5
 1 testified that he found a black case containing Defendant’s email address, two baggies

 2 of pills and a small container of razors where Defendant crashed the motorcycle after

 3 being chased by police. We also note that the jury was properly instructed as to the

 4 requisite elements necessary for possession of drug paraphernalia. See State v. Smith,

 5 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the

 6 law of the case against which the sufficiency of the evidence is to be measured.”). We

 7 conclude that the jury reasonably determined that the spoon was drug paraphernalia

 8 and that the spoon, in combination with other properly admitted evidence, was

 9 sufficient to support Defendant’s conviction for possession of drug paraphernalia. See

10 Rojo, 1999-NMSC-001, ¶ 23 (“Just because the evidence supporting the conviction

11 was circumstantial does not mean it was not substantial evidence.” (internal quotation

12 marks and citation omitted)).

13 The District Court Erred by Admitting a Stolen Vehicle Affidavit to Prove
14 Ownership of the Stolen Dirt Bike That Defendant Was Convicted of Possessing,
15 However the Error Was Harmless.

16   {8}   Defendant claims that the district court abused its discretion in admitting a

17 stolen vehicle affidavit in violation of Rule 11-1002 NMRA, known as the “best

18 evidence rule,” asserting that the affidavit was not the best evidence of the ownership

19 of the stolen dirt bike.




                                              6
 1   {9}    “We review claimed error in the admission of evidence for abuse of discretion.”

 2 State v. Lopez, 2009-NMCA-044, ¶ 12, 146 N.M. 98, 206 P.3d 1003. “[A district]

 3 court abuses its discretion when it exercises its discretion based on a misunderstanding

 4 of the law.” State v. Vigil, 2014-NMCA-096, ¶ 20, 336 P.3d 380. No abuse of

 5 discretion is found unless the court finds it clearly untenable or not justified by reason.

 6 Lopez, 2009-NMCA-044, ¶ 12.

 7   {10}   At trial, Defendant objected to the admission of the affidavit and supporting

 8 testimony under Rule 11-802 NMRA—the rule prohibiting the admission of

 9 hearsay—and Rule 11-1002—the “best evidence rule,” generally requiring the

10 original of a writing to prove its contents. Having then considered Defendant’s

11 arguments and in overruling his objection, the district court applied Rule 11-803(14)

12 NMRA, “[r]ecords of documents that affect an interest in property.”1 The district court

13 stated: “I think your objection is covered by Rule 11-803. [Section 14] is an exception

14 to the hearsay rule, ‘Record[s] of documents that affect an interest in property.’

15 Objection is overruled.”

16   {11}   Defendant claims that the district court erred by applying the exception in Rule

17 11-803(14), “[r]ecords of documents that affect an interest in property[,]” rather than



          1
18          The record reflects that the district court was incorrectly making reference to
19 Rule 11-803(13), but cited Rule 11-803(14), “[r]ecords of documents that affect an
20 interest in property.”

                                                7
 1 the “best evidence rule.” Rule 11-1002 provides that “[a]n original writing, recording,

 2 or photograph is required in order to prove its content unless these rules or a statute

 3 provides otherwise.” The document that the officer referred to during his testimony,

 4 the certificate of title, was not introduced at trial. Rather, the testifying officer stated

 5 that he filled out the stolen vehicle affidavit by copying onto the affidavit information

 6 from the certificate of title, including the VIN, license plate number, and state and

 7 year of registration. The affidavit was admitted into evidence over Defendant’s

 8 objection.

 9   {12}   We conclude that the district court’s ruling violated the “best evidence rule” as

10 the certificate of title, not the affidavit, was required to prove its contents, but that the

11 error was harmless. See State v. Hanson, 2015-NMCA-057,¶¶ 4-6, 16, 348 P.3d 1070

12 (holding that admission of transcribed transcripts of text messages violated the best

13 evidence rule). Rule 11-1004(A) NMRA provides an exception to the “best evidence

14 rule” such that the original writing would not be required. It allows introduction of a

15 writing that is not the original when “all the originals are lost or destroyed, and not by

16 the proponent acting in bad faith[.]” Id. In order to invoke the exception, the

17 proponent of the evidence must “establish that (1) the originals were lost or destroyed,

18 and (2) their loss or destruction was not the result of bad faith” by a preponderance

19 of the evidence. Hanson, 2015-NMCA-057, ¶¶ 10, 12. Because the State failed to



                                                 8
 1 meet its burden of proof required to invoke the exception to the original title, we

 2 conclude that the affidavit was erroneously admitted. We now review the admission

 3 of the affidavit for prejudice or harmless error, and hold the error is harmless, and

 4 therefore, not reversible. See Lopez, 2009-NMCA-044, ¶ 15 (stating whether

 5 admission of evidence of ownership was prejudicial as contributing to jury verdict or

 6 non-prejudicial harmless error).

 7   {13}   Evidentiary error that does not implicate confrontation rights is reviewed for

 8 non-constitutional harmless error. See State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d

 9 936. “[N]on-constitutional error is harmless when there is no reasonable probability

10 the error affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110

11 (internal quotation marks and citation omitted). In order to find Defendant guilty of

12 possession of a stolen vehicle, the State had to prove beyond a reasonable doubt that

13 (1) Defendant possessed the dirt bike, (2) the dirt bike was stolen or unlawfully taken,

14 and (3) Defendant knew or had reason to know that the dirt bike was stolen or

15 unlawfully taken.

16   {14}   The owner of the dirt bike testified that it was unlawfully taken; the owner

17 identified the dirt bike as his after it was recovered from being impounded; he

18 identified the dirt bike based on the distinctive decals he placed on the dirt bike; and

19 he was absolutely certain that the recovered dirt bike was his, responding when asked



                                               9
 1 whether the dirt bike was the one that belonged to him, “Yes, sir. I’m positive.”

 2 Further, there was no “substantial conflicting evidence to discredit the [s]tate’s

 3 testimony.” Lopez, 2009-NMCA-044, ¶ 18; see id. (explaining that unrebutted

 4 competent substantial evidence makes improper evidence appear minuscule). We

 5 therefore conclude that the erroneously admitted affidavit constituted harmless error

 6 as Defendant has failed to show there is a reasonable probability that the erroneously

 7 admitted affidavit affected the jury’s determination that the dirt bike belonged to the

 8 owner, who positively identified it as his in several definitive ways.

 9 The District Court Did Not Abuse Its Discretion by Allowing an Officer to Testify
10 About the Police Report He Prepared Based on the Alleged Untimeliness of the
11 Disclosure of the Police Report

12   {15}   Defendant contends that Officer Carrillo should not have been permitted to

13 testify because his police report was not disclosed to Defendant until the morning of

14 trial. “We review a district court’s ruling on late discovery for abuse of discretion.”

15 State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027.

16          In considering whether late disclosure of evidence requires reversal, a
17          reviewing court will consider the following factors: (1) whether the
18          [s]tate breached some duty or intentionally deprived the defendant of
19          evidence; (2) whether the improperly non-disclosed evidence was
20          material; (3) whether the non-disclosure of the evidence prejudiced the
21          defendant; and (4) whether the [district] court cured the failure to timely
22          disclose the evidence.

23 Id. ¶ 15 (internal quotation marks and citation omitted).



                                                10
 1   {16}   Based on these factors, we consider the following: (1) Defendant makes no

 2 assertion that the State breached a duty or acted in bad faith; (2) the district court

 3 ordered the State to make Officer Carrillo available for an interview prior to calling

 4 him as a witness; and (3) Officer Carrillo’s testimony was similar to that of Officer

 5 Quintana, whose testimony was timely disclosed to Defendant.

 6   {17}   Based on the foregoing, we weigh the first factor against Defendant. With

 7 respect to the second factor, materiality, we must determine whether “there is a

 8 reasonable probability that, had the evidence been disclosed to the defense [sooner],

 9 the result of the proceeding would have been different.” Id. (internal quotation marks

10 and citation omitted). Defendant has not explained how the outcome would have been

11 different, especially in light of the fact that Officer Carrillo testified similarly to

12 Officer Quintana, making his testimony cumulative evidence. See Case v. Hatch,

13 2008-NMSC-024, ¶ 54, 144 N.M. 20, 183 P.3d 905 (explaining that “cumulative

14 evidence is not considered material”). The third factor, prejudice, requires that we

15 consider whether the defense’s case would have been improved by an earlier

16 disclosure or how the defense would have prepared differently for trial. Defendant has

17 failed to explain how his preparation was hampered or how his case would have been

18 improved, but for the late disclosure. We are unpersuaded by Defendant’s arguments

19 regarding this consideration. Because Officer Carrillo’s testimony appears to have



                                             11
 1 been cumulative, as we pointed out above, we perceive no prejudice. Finally, we

 2 weigh the last factor against Defendant because the district court ordered that the

 3 defense be permitted to interview Officer Carrillo prior to his testimony. We therefore

 4 conclude that the district court did not abuse its discretion in allowing Officer Carrillo

 5 to testify.

 6 CONCLUSION

 7   {18}   For the foregoing reasons, we affirm Defendant’s convictions.

 8   {19}   IT IS SO ORDERED.


 9                                           ______________________________
10                                           STEPHEN G. FRENCH, Judge


11 WE CONCUR:


12 ______________________________
13 J. MILES HANISEE, Judge


14 ______________________________
15 JULIE J. VARGAS, Judge




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