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

 2 Opinion Number:

 3 Filing Date: February 28, 2018

 4 NO. A-1-CA-34909

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 PAUL SALAZAR,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Stephen K. Quinn, District Judge

12 Hector H. Balderas, Attorney General
13 Maha Khoury, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 Allison H. Jaramillo, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                       OPINION

 2 VIGIL, Judge.

 3   {1}   Defendant Paul Salazar appeals his convictions for one count of trafficking

 4 methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006), one count of

 5 distribution of synthetic cannabinoids, contrary to NMSA 1978, Section 30-31-

 6 22(A)(1) (2011), and one count of conspiracy to traffic methamphetamine or to

 7 distribute synthetic cannabinoids, contrary to NMSA 1978, Section 30-28-2 (1979).

 8 For the reasons that follow, we affirm Defendant’s convictions.

 9 BACKGROUND

10   {2}   The State alleged that on August 15, 2013, Nicole Ramirez, at Defendant’s

11 direction, delivered methamphetamine and the chemicals PB-22 and 5F-PB22 hidden

12 within hygiene products (deodorant sticks) to David Patrick, an inmate confined in

13 the Curry County Detention Center (CCDC) in Clovis, New Mexico. Additional

14 factual and procedural background is provided in our analysis as required.

15 DISCUSSION

16   {3}   Defendant’s appeal raises three issues. First, delay amounted to a violation of

17 Defendant’s right to a speedy trial. Second, the State failed to prove that the

18 substances contained in the deodorant container were synthetic cannabinoids as

19 defined under New Mexico law. Third, the State did not present sufficient evidence
 1 to sustain Defendant’s convictions because it did not call Ms. Ramirez to testify at

 2 trial.

 3   {4}    Defendant also asserts four additional unpreserved issues, invoking either

 4 fundamental or plain error. First, the State should have charged Defendant with

 5 bringing contraband into the jail, not trafficking. Second, the district court erred in

 6 sentencing Defendant to second-degree conspiracy when the jury’s finding was

 7 unclear. Third, comments made by the prosecutor during closing argument deprived

 8 Defendant of a fair trial. Fourth, the district court erred in admitting the testimony of

 9 Probation Officer Edie Barela (Officer Barela).

10 I.       The Delay Did Not Violate Defendant’s Speedy Trial Rights

11   {5}    It took nineteen months and ten days to bring Defendant to trial on the counts

12 charged in the State’s criminal information. Based on this delay, Defendant contends

13 that the delay violated his constitutional right to a speedy trial.

14   {6}    The Sixth Amendment to the United States Constitution, applicable to the

15 states through the Fourteenth Amendment, see Klopfer v. North Carolina, 386 U.S.

16 213, 222-23 (1967), provides that “[i]n all criminal prosecutions, the accused shall

17 enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. In determining

18 whether “a defendant has been deprived of his constitutional right to a speedy trial,

19 [New Mexico appellate courts] use the four-factor test set forth in Barker[ v. Wingo,


                                               2
 1 407 U.S. 514, 530 (1972)] balancing the length of delay, the reason for [the] delay,

 2 the defendant’s assertion of the right to a speedy trial, and the prejudice to the

 3 defendant.” State v. Ochoa, 2017-NMSC-031, ¶ 4, 406 P.3d 505. The appellate courts

 4 “defer to the district court’s factual findings in considering a speedy trial claim, but

 5 weigh each factor de novo,” id., and consider the Barker factors on a “case-by-case

 6 basis.” Id. ¶ 5. This analysis is also “not a rigid or mechanical exercise, but rather a

 7 difficult and sensitive balancing process.” Id. (internal quotation marks and citation

 8 omitted).

 9 A.      Timeline of Delay in Defendant’s Case

10   {7}   We begin by setting forth the facts and circumstances surrounding the delays

11 in bringing Defendant’s case to trial. Defendant was arrested on September 12, 2013,

12 and on September 30, 2013, the State filed the criminal information.

13   {8}   On December 5, 2013, the first pretrial conference was held, at which time trial

14 was set for February 25, 2014. On January 8, 2014, the State moved for a

15 continuance. The district court granted the continuance on January 24, 2014, in part

16 because the parties still had not received results from the forensic laboratory

17 identifying the substances found in the deodorant sticks left by Ms. Ramirez at CCDC

18 for Mr. Patrick.

19   {9}   On May 29, 2014, the second pretrial conference was held and trial was set for


                                              3
 1 September 9, 2014. The State represented that it had received the forensic laboratory

 2 results, updated its witness list, and was ready for trial. Defendant also informed the

 3 district court that he was ready for trial. Defendant also communicated to the district

 4 court that he wished to be transferred to a prison facility so that he could earn good

 5 time credit while the charges in his current case were pending.

 6   {10}   On July 9, 2014, new counsel entered an appearance on behalf of Defendant,

 7 and filed Defendant’s first demand for a speedy trial.

 8   {11}   Between July 29, 2014, and September 8, 2014, the district judge was

 9 unavailable for medical reasons. On August 18, 2014, the district court filed an

10 amended notice of jury trial, rescheduling Defendant’s trial for September 10, 2014.

11 On August 29, 2014, Defendant moved for a six-month continuance in order to

12 continue his investigation and conduct witness interviews. In this motion, Defendant

13 waived all speedy trial claims for this period of continuance. The district court

14 granted the continuance on September 3, 2014. However, on September 26, 2014,

15 Defendant made his second demand for a speedy trial.

16   {12}   On November 19, 2014, Defendant filed a motion to dismiss on speedy trial

17 grounds due to the fact that fourteen months had passed since the time of his arrest.

18   {13}   On November 24, 2014, a third pretrial conference was held where trial was set

19 for January 22, 2015. The State represented that it was ready for trial. Defendant


                                               4
 1 stated that although he still had investigation and witness interviews to conduct, he

 2 would do his best to be ready for trial by January 22, 2015.

 3   {14}   On December 17, 2014, a hearing on Defendant’s motion to dismiss on speedy

 4 trial grounds was held; however, the district court reserved ruling on Defendant’s

 5 motion until January 20, 2015, at which time Defendant’s motion was denied.

 6   {15}   On January 20, 2015, at jury selection, Defendant moved for a second

 7 continuance of trial on grounds that additional time was needed to set a hearing for

 8 remaining motions and to consider the State’s plea offer.The motion was granted.

 9   {16}   On February 5, 2015, a fourth pretrial conference was held, at which time trial

10 was set for April 22, 2015. The State represented that it was ready for trial. Defendant

11 renewed his motion to dismiss on speedy trial grounds and stated that he would be

12 ready for trial on April 22, 2015.

13   {17}   On March 2, 2015, Defendant filed a motion for reconsideration of the district

14 court’s order denying his November 19, 2014 motion to dismiss on speedy trial

15 grounds. The hearing on Defendant’s motion for reconsideration was held on March

16 27, 2015.

17   {18}   On April 17, 2015, the district court denied Defendant’s motion for

18 reconsideration. The district court determined: (1) Defendant’s case is an intermediate

19 complexity case; (2) the time between the State’s January 9, 2014 motion for a


                                               5
 1 continuance and May 29, 2014 (the date on which the State represented that it was

 2 prepared for trial) did not count against Defendant; (3) the time during which the

 3 district judge was medically unavailable (between July 29, 2014, and September 8,

 4 2014) did not count against either the State or Defendant; (4) the delay between

 5 September 8, 2014, and the April 22, 2015 jury trial counted against Defendant based

 6 on his August 29, 2014, and January 20, 2015, requested continuances; and (5)

 7 because Defendant’s probation was revoked in December 2013 and for which he was

 8 incarcerated until April 2018, Defendant was not prejudiced by his pretrial

 9 incarceration arising in the instant case.

10 B.       Length of Delay

11   {19}   The first Barker factor, “length of delay, is both the threshold question in the

12 speedy trial analysis and a factor to be weighed with the other three Barker factors.”

13 Ochoa, 2017-NMSC-031, ¶ 12. Under Barker, the states are “free to prescribe a

14 reasonable period consistent with constitutional standards” for bringing a case to trial.

15 407 U.S. at 523; Ochoa, 2017-NMSC-031, ¶ 12. Our Supreme Court established

16 speedy trial guidelines in State v. Garza, 2009-NMSC-038, ¶ 2, 146 N.M. 499, 212

17 P.3d 387. Garza holds that “the length of delay necessary to trigger the speedy trial

18 inquiry [is] twelve months for simple cases, fifteen months for cases of intermediate

19 complexity, and eighteen months for complex cases.” Id. (holding “that these


                                                6
 1 guidelines are merely thresholds that warrant further inquiry into a defendant’s

 2 claimed speedy trial violation and should not be construed as bright-line tests

 3 dispositive of the claim itself”).

 4   {20}   “When the length of delay exceeds a guideline, it must be weighed as one

 5 factor in determining whether there has been a violation of the right to a speedy

 6 trial[.]” Ochoa, 2017-NMSC-031, ¶ 14. “As the delay lengthens, it weighs

 7 increasingly in favor of the accused. In other words, a delay barely crossing the

 8 guideline is of little help to the defendant’s claim, while a delay of extraordinary

 9 length weighs heavily in favor of the defendant.” Id. (internal quotation marks and

10 citation omitted). Our appellate courts “defer to the district court’s finding of

11 complexity” in a given case. Id. ¶ 15.

12   {21}   Defendant was arrested on September 12, 2013. Nineteen months and ten days

13 later, on April 22, 2015, Defendant’s case was brought to trial. The district court

14 concluded that Defendant’s case was of intermediate complexity. See State v.

15 Montoya, 2011-NMCA-074, ¶ 16, 150 N.M. 415, 259 P.3d 820 (“Cases of

16 intermediate complexity . . . seem to involve numerous or relatively difficult criminal

17 charges and evidentiary issues, numerous witnesses, expert testimony, and scientific

18 evidence.” (internal quotation marks and citation omitted)). Defendant’s case was

19 therefore delayed four months and ten days beyond the fifteen-month guideline for


                                              7
 1 cases of intermediate complexity. This delay meets the threshold for further speedy

 2 trial analysis. We also conclude that under the circumstances, the first Barker factor

 3 weighs only slightly against the State. See id. ¶ 17 (holding that the delay of six

 4 months beyond the fifteen-month guideline for intermediate complexity case “was not

 5 so long or protracted as to weigh more than slightly against the [s]tate”).

 6 C.       Reason for Delay

 7   {22}   The second Barker factor requires that we evaluate the reasons for delay in the

 8 defendant’s case. Ochoa, 2017-NMSC-031, ¶ 18. Barker describes three types of

 9 delay: (1) “a deliberate attempt to delay the trial in order to hamper the defense[,]”

10 which “should be weighted heavily against the government”; (2) “negligent or

11 administrative delay[,]” which “weighs less heavily but nevertheless weighs against

12 the [s]tate”; and (3) “neutral delay, or delay justified by a valid reason,” which “does

13 not weigh against either party.” Id. (alteration, internal quotation marks, and citations

14 omitted). Additionally, “delay initiated by defense counsel generally weighs against

15 the defendant.” Id.; State v. Grissom, 1987-NMCA-123, ¶ 34, 106 N.M. 555, 746

16 P.2d 661 (“Delay arising from hearing defendants’ motions, not caused by the

17 prosecution, is weighed against the defendant.”).

18   {23}   We agree with the district court’s analysis that the time between the State’s

19 January 9, 2014 motion for a continuance and May 29, 2014 (the date on which the


                                               8
 1 State stated that it was prepared for trial) was administrative delay that counts against

 2 the State. We also agree with the district court that the time during which the district

 3 court judge was medically unavailable (between July 29, 2014, and September 8,

 4 2014) was neutral delay that does not count against either the State or Defendant. See

 5 State v. White, 1994-NMCA-084, ¶ 5, 118 N.M. 225, 880 P.2d 322 (holding that the

 6 district court judge’s surgery and recovery time did not weigh against either side in

 7 speedy trial analysis). Finally, we agree with the district court’s finding that the final

 8 delay between September 8, 2014, and the April 22, 2015 jury trial weighs against

 9 Defendant due to the August 29, 2014 and January 20, 2015 continuances requested

10 by defense counsel. Because four months and twenty days of delay are attributable

11 to administrative delay by the State, one month and ten days of delay are attributable

12 to neutral delay, but seven months and fourteen days of delay are attributable to

13 Defendant, we conclude that the second Barker factor weighs against Defendant.

14 D.       Assertion of the Right

15   {24}   The third Barker factor requires that we consider whether the defendant

16 asserted the right to a speedy trial. Ochoa, 2017-NMSC-031, ¶ 41. “The frequency

17 and force” of the assertion of the right may be taken into account. Id. “On one hand,

18 a single demand for a speedy trial is sufficient to assert the right. On the other hand,

19 a defendant’s assertion can be weakened by a defendant’s acquiescence to the delay.”


                                               9
 1 Id. ¶ 42. “[T]he consistency of a defendant’s legal positions with respect to the delay”

 2 are also considered. Id.

 3   {25}   From the date of his arrest to trial, Defendant asserted his right to a speedy trial

 4 on five occasions. First, upon entering his appearance on July 9, 2014, Defendant’s

 5 second trial counsel made Defendant’s first demand for a speedy trial. On August 29,

 6 2014, however, Defendant moved for a six-month continuance in order to continue

 7 his investigation and conduct witness interviews. In this motion, Defendant waived

 8 “all speedy trial claims for this period of continuance.” Approximately a month later,

 9 on September 26, 2014, Defendant made his second demand for a speedy trial. This

10 demand was closely followed by Defendant’s third demand for a speedy trial made

11 in the form of a motion to dismiss on speedy trial grounds on November 19, 2014.

12 However, upon the district court’s denial of Defendant’s motion to dismiss on speedy

13 trial grounds on January 20, 2015, Defendant immediately moved for another

14 continuance of trial, stating that additional time was needed to set a hearing for

15 remaining motions and to consider the State’s plea offer. Defendant asserted his right

16 to a speedy trial for the fourth time on February 5, 2015, at the fourth pretrial

17 conference. Defendant’s final assertion of his right to a speedy trial came in the form

18 of his March 2, 2015 motion for reconsideration of the district court’s order denying

19 his November 19, 2014 motion to dismiss on speedy trial grounds.


                                                 10
 1   {26}   Although Defendant’s assertions of his right to a speedy trial were frequent,

 2 they lacked force and were further mitigated by Defendant’s multiple motions for

 3 continuances, requests to the court for more time to conduct his investigation and

 4 interview witnesses, and requests to set motions hearings once the State had

 5 represented that it was ready for trial. See State v. Flores, 2015-NMCA-081, ¶ 31, 355

 6 P.3d 81 (holding that “the force of a defendant’s assertions [of his speedy trial right]

 7 is mitigated where he filed motions that were bound to slow down the proceedings,

 8 such as a motion asking for additional time, a motion to appoint new counsel, a

 9 motion to reset the trial, or other procedural maneuvers” (alteration, internal quotation

10 marks, and citation omitted)). Accordingly, we conclude that the third Barker factor

11 weighs against Defendant.

12 E.       Prejudice

13   {27}   The fourth Barker factor requires that we analyze the prejudice to the defendant

14 as a result of the delay in bringing his case to trial. Ochoa, 2017-NMSC-031, ¶ 48.

15 We assess prejudice “in the light of the interests of defendants which the speedy trial

16 right was designed to protect. These interests are preventing oppressive pretrial

17 incarceration, minimizing anxiety and concern of the accused, and limiting the

18 possibility that the defense will be impaired.” Id. (internal quotation marks and

19 citation omitted).


                                               11
 1   {28}   Defendant’s sole claim of prejudice arising from his pretrial incarceration is

 2 that he “suffered from anxiety and concern” while the charges were pending and “lost

 3 the opportunity to earn good time on his probation violation.” We reject this claim.

 4 Defendant received credit for six hundred and twenty-nine days pre-sentence

 5 confinement, which spanned from the date of his arrest on September 12, 2013,

 6 through June 2, 2015, as well as credit for his post-sentence confinement from June

 7 2, 2015, until delivery to the New Mexico Department of Corrections. Additionally,

 8 although Defendant may have experienced some anxiety and concern as a result of

 9 his pretrial incarceration, he has made no showing that such anxiety or concern was

10 undue beyond bare allegations. See Garza, 2009-NMSC-038, ¶ 35 (stating that

11 because “some degree of oppression and anxiety is inherent for every defendant who

12 is jailed while awaiting trial[,]” this factor weighs in the defendant’s favor “only

13 where the pretrial incarceration or the anxiety suffered is undue.”(alterations, internal

14 quotation marks, and citation omitted)); see also Ochoa, 2017-NMSC-031, ¶ 61

15 (stating that where the defendant offered no affidavits, testimony, or documentation

16 with respect to his specific circumstances of anxiety, the Court declined to speculate

17 as to the particularized anxiety or concern he may have suffered); State v. Spearman,

18 2012-NMSC-023, ¶ 39, 283 P.3d 272 (declining to hold that the defendant suffered

19 undue anxiety based on the bare allegations of defense counsel). Accordingly, we


                                              12
 1 conclude that Defendant failed to establish prejudice cognizable under the fourth

 2 Barker factor.

 3 F.       Balancing the Factors

 4   {29}   Although Defendant established that his pretrial incarceration exceeded the

 5 guideline for intermediate complexity cases under the first Barker factor, for the

 6 reasons previously stated, we conclude that the remaining three factors (reasons for

 7 delay, assertion of the right, and prejudice) weigh against Defendant. Accordingly,

 8 we conclude that Defendant was not deprived of his constitutional right to a speedy

 9 trial.

10 II.      The State Established That the Substances Found in the Deodorant Sticks
11          Were Synthetic Cannabinoids as Defined Under New Mexico Law

12   {30}   Defendant argues that when he was charged and tried for distribution of

13 synthetic cannabinoids that the particular chemicals (5F-PB22 and PB-22) found in

14 the deodorant sticks were not listed as controlled substances under the New Mexico

15 Controlled Substances Act (CSA). See NMSA 1978, § 30-31-6(C)(19)(a)-(k) (2011).

16 Accordingly, Defendant submits, “[t]he State failed to prove that the substance[s]

17 inside the deodorant container w[ere] synthetic cannabinoids as prohibited” by New

18 Mexico law.

19   {31}   Defendant’s claim raises a mixed question of law and fact. Whether chemicals

20 identified as “synthetic cannabinoids” that are not specifically enumerated under

                                             13
 1 Section 30-31-6(C)(19)(a)-(k) are excluded from control under the CSA is a question

 2 of statutory interpretation, which we review de novo. See State v. Leong, 2017-

 3 NMCA-070, ¶ 10, 404 P.3d 9 (stating issues of statutory interpretation are reviewed

 4 de novo). However, whether the State proved that the particular chemicals collected

 5 from the deodorant sticks as evidence in Defendant’s case (5F-PB22 and PB-22) were

 6 “synthetic cannabinoids” as prohibited by law at the time Defendant was charged and

 7 tried in this case is a question of fact that we review for sufficient evidence. See State

 8 v. Ross, 2007-NMCA-126, ¶ 16, 142 N.M. 597, 168 P.3d 169 (“We review factual

 9 questions for sufficiency of the evidence[.]”).

10   {32}   We begin by determining whether chemicals identified as “synthetic

11 cannabinoids” that are not specifically enumerated under §§ 30-31-6(C)(19)(a)-(k)

12 are excluded from the CSA. “Our primary goal when interpreting statutory language

13 is to give effect to the intent of the [L]egislature.” State v. Torres, 2006-NMCA-106,

14 ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning

15 of the words of [the] statute, unless this leads to an absurd or unreasonable result.”

16 State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801. “If the

17 language of the statute is clear and unambiguous, we must give effect to that language

18 and refrain from further statutory interpretation.” State v. McWhorter, 2005-NMCA-

19 133, ¶ 5, 138 N.M. 580, 124 P.3d 215.


                                               14
 1   {33}   The CSA expressly designates “synthetic cannabinoids” as Schedule I

 2 controlled substances, “including” eleven specific synthetic cannabinoids that are

 3 then listed. Section 30-31-6(C)(19)(a)-(k). Because the language of Section 30-31-6

 4 is clear and unambiguous, we hold that “synthetic cannabinoids” is not limited to

 5 those that are listed in subsections (a) through (k) of Section 30-31-6(C)(19). The

 6 word “including” following the term “synthetic cannabinoids” expresses a clear

 7 legislative intent that the listing of specific examples of “synthetic cannabinoids” that

 8 follows is not exclusive. See United Rentals N.W., Inc. v. Yearout Mech., Inc., 2010-

 9 NMSC-030, ¶ 13, 148 N.M. 426, 237 P.3d 728 (“Our caselaw . . . recognizes that the

10 use of the word ‘includ[ing]’ to connect a general clause to a list of enumerated

11 examples demonstrates a legislative intent to provide an incomplete list[.]”); see also

12 State v. Strauch, 2015-NMSC-009, ¶ 37, 345 P.3d 317 (quoting the New Mexico

13 Legislative Council Service’s Legislative Drafting Manual 31 (2000, amended 2008)

14 for the proposition that in a New Mexico statute “the word ‘includes’ implies an

15 incomplete listing”); In re Estate of Corwin, 1987-NMCA-100, ¶ 3, 106 N.M. 316,

16 742 P.2d 528 (“A term whose statutory definition declares what it ‘includes’ is more

17 susceptible to extension of meaning by construction than where the definition

18 declares what a term ‘means.’ It has been said the word ‘includes’ is usually a term

19 of enlargement, and not of limitation. It, therefore, conveys the conclusion that there


                                              15
 1 are other items includable, though not specifically enumerated.” (omission, internal

 2 quotation marks, and citation omitted)); Wilson v. Rowan Drilling Co., 1950-NMSC-

 3 046, ¶ 90, 55 N.M. 81, 227 P.2d 365 (“A statute which uses the word ‘including’

 4 (certain things) is not limited in meaning to that included.” (citation omitted)).

 5 Accordingly, all chemicals that are “synthetic cannabinoids”—not only those

 6 enumerated under Section 31-30-6(C)(19)(a)-(k)—are Schedule I substances, the

 7 possession, distribution, or trafficking of which is a violation of law. See Section 30-

 8 31-20; NMSA 1978, § 30-31-21 (1987); NMSA 1978, § 30-31-22 (2011); NMSA

 9 1978, § 30-31-23 (2011)

10   {34}   We therefore proceed to determine whether the State presented sufficient

11 evidence that the chemicals collected from the deodorant sticks (5F-PB22 and PB-22)

12 were “synthetic cannabinoids” under Section 31-30-6(C)(19) when Defendant was

13 charged and tried. See State v. Ramirez, 2018-NMSC-003, ¶ 6, 409 P.3d 902 (stating

14 that appellate courts determine “whether substantial evidence, either direct or

15 circumstantial, exists to support every element essential to a conviction beyond a

16 reasonable doubt”).

17   {35}   Here, Deputy Sandy Loomis of the Curry County Sheriff’s Office, testified that

18 the substances found in the deodorant sticks that Ms. Ramirez attempted to deliver

19 to Mr. Patrick at CCDC were collected as evidence and sent to the State’s forensic


                                              16
 1 crime laboratory for analysis. Samuel Tony Titone, the State’s expert in forensic

 2 chemistry, testified that he reviewed the analysis of the substances collected into

 3 evidence in Defendant’s case. Based on his independent review of the crime lab’s

 4 analysis, Mr. Titone concluded that the substances tested by the crime lab were

 5 methamphetamine and the chemicals 5F-PB22 and PB-22, which he testified are

 6 “synthetic cannabinoids.” Mr. Titone testified that 5F-PB22 and PB-22 are

 7 categorized as synthetic cannabinoids because while completely synthetic, the

 8 chemicals mimic the effects of cannabis. Viewing the evidence in the light most

 9 favorable to the guilty verdict and indulging all reasonable inferences in favor of the

10 verdict, we conclude that the State presented sufficient evidence to establish beyond

11 a reasonable doubt that the chemicals collected from the deodorant sticks as evidence

12 in Defendant’s case (5F-PB22 and PB-22) were “synthetic cannabinoids” within the

13 meaning of Section 31-30-6(C)(19).

14 III. The State Presented Sufficient Evidence to Support Defendant’s
15 Convictions

16   {36}   Defendant argues that the State’s case was founded on the theory that he

17 directed Ms. Ramirez to drop off the hygiene items containing methamphetamine and

18 synthetic cannibinoids at CCDC for Mr. Patrick. However, because the State did not

19 call Ms. Ramirez to testify, Defendant contends there was a “missing link” in the

20 State’s case. Specifically, Defendant contends that the jury was asked to “surmise”

                                             17
 1 that the phone calls between him and Mr. Patrick concerning landscaping, storage,

 2 and hygiene connected Defendant to the substances found in the deodorant container,

 3 “despite no physical evidence whatsoever linking him to these items.” Therefore,

 4 because “[i]t is entirely possible that Ms. Ramirez decided on her own” to take the

 5 substances found in the deodorant container into the jail, Defendant maintains that

 6 “[h]er testimony was critical to this case” and the absence of which led to a failure by

 7 the State to prove any of the counts beyond a reasonable doubt.

 8   {37}   Again, we “view the evidence in the light most favorable to the guilty verdict,

 9 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

10 of the verdict.” State v. Carrillo, 2017-NMSC-023, ¶ 42, 399 P.3d 367 (internal

11 quotation marks and citation omitted). The central consideration in sufficiency of

12 evidence review is whether substantial direct or circumstantial evidence exists to

13 support a verdict beyond a reasonable doubt as to all essential elements of the crimes

14 for which the defendant was convicted. State v. Suazo, 2017-NMSC-011, ¶ 32, 390

15 P.3d 674. In jury trials, “the jury instructions are the law of the case against which the

16 sufficiency of the evidence supporting the jury’s verdict is to be measured.” State v.

17 Duttle, 2017-NMCA-001, ¶ 18, 387 P.3d 885 (internal quotation marks and citation

18 omitted).




                                               18
 1 A.       The Charges Under Counts 1-3 of the Criminal Information and the
 2          Evidence Presented at Trial

 3   {38}   Under Count 1, the jury was instructed that in order to find Defendant guilty

 4 of trafficking methamphetamine, the State was required to prove beyond a reasonable

 5 doubt the following elements of the crime:

 6                [D]efendant transferred methamphetamine or caused the transfer
 7          of methamphetamine or attempted to transfer methamphetamine to
 8          another;

 9                [D]efendant knew that it was methamphetamine or believed it to
10          be methamphetamine or believed it to be some drug or other substance
11          the possession of which is regulated or prohibited by law;

12               This happened in New Mexico on or about the 15th day of
13          August, 2013.

14   {39}   Under Count 2, the jury was instructed that in order to find Defendant guilty

15 of distribution of marijuana or synthetic cannabinoids, the State was required to prove

16 beyond a reasonable doubt the following elements of the crime:

17                 [D]efendant transferred Marijuana or Synthetic Cannabinoids or
18          caused the transfer of Marijuana or Synthetic Cannabinoids or attempted
19          to transfer Marijuana or Synthetic Cannabinoids;

20                [D]efendant knew that it was Marijuana or Synthetic
21          Cannabinoids or believed it to be Marijuana or Synthetic Cannabinoids
22          or believed it to be some drug or other substance the possession of
23          which is regulated or prohibited by law;

24               This happened in New Mexico on or about the 15th day of
25          August, 2013.


                                              19
 1   {40}   Finally, under Count 3, the jury was instructed that in order to find Defendant

 2 guilty of conspiracy to traffic controlled substances or distribute synthetic

 3 cannabinoids, the State was required to prove beyond a reasonable doubt each of the

 4 following elements of the crime:

 5                [D]efendant and another person by words or acts agreed together
 6          to commit Trafficking of Controlled Substances or Distribution of
 7          Marijuana[;]

 8                [D]efendant and another person intended to commit Trafficking
 9          of Controlled Substances or Distribution of Marijuana[;]
10
11               This happened in New Mexico on or about the 15th day of
12          August, 2013.

13   {41}   At trial, Officer Stephanie Marshall of CCDC, testified that on August 15,

14 2013, she came in contact with Ms. Ramirez, who was visiting CCDC to drop off

15 hygiene products to Mr. Patrick. These hygiene products included shampoo,

16 toothpaste, a toothbrush, and deodorant. Officer Marshall also testified that it is

17 common practice for items being dropped off for inmates to be inspected by CCDC

18 officers, and that she inspected the hygiene products dropped off by Ms. Ramirez for

19 Mr. Patrick. During this inspection, Officer Marshall testified that she found a green

20 leafy substance and crystal-like substance wrapped in small baggies the size of

21 marbles in the bottom of the deodorant. Officer Marshall turned over the substances

22 to her supervisor.


                                              20
 1   {42}   Deputy Loomis testified that he was put in charge of the investigation of

 2 Defendant’s case in part because he had access to the CCDC telephone call system

 3 and the ability to listen to telephone calls made to and from inmates in the facility. As

 4 part of his investigation, Deputy Loomis began listening to the recorded phone calls

 5 between Mr. Patrick and Defendant, and in particular the phone calls made between

 6 the two men shortly before and shortly after Ms. Ramirez’s attempt to deliver the

 7 confiscated items to CCDC.

 8   {43}   Through his search of the CCDC phone system, Deputy Loomis picked up on

 9 four phone calls of interest made between Mr. Patrick, a known drug trafficker, and

10 Defendant. The first call was made on August 13, 2013, at 4:09 p.m. The

11 conversation proceeded as follows:

12          Defendant: Yesterday, my [inaudible] went to go get that. Didn’t
13                     happen, bro. It wasn’t ready.

14          Mr. Patrick: Oh, alright.

15                ....

16          Mr. Patrick: Okay, well, it probably won’t be til tomorrow now
17                       because its like from 1 to 4 I think and 8 to 12.

18                ....

19          Mr. Patrick: Just see if she could pay that storage tomorrow or
20              something, you know?




                                              21
 1          Defendant: Yeah. That’s what he had told them, man, when she called
 2                     up there. And he said no, we didn’t receive no paperwork
 3                     on it. She said she told him that storage was due and that
 4                     . . . she needed to go . . . pay it. . . . And then she called
 5                     back in that afternoon and they said that it wasn’t done yet.
 6                     So.

 7                ....

 8          Defendant: Now that I got paid though, bro, I’ll make sure I get you
 9          some hygiene, bro.

10          Mr. Patrick: Okay, that’s cool. I appreciate it.

11          Defendant: I know how it is, homey, I was in there too. I know what’s
12                     up, dog.

13   {44}   Deputy Loomis summarized the first telephone call conversation as follows.

14 Mr. Patrick was releasing some money from his account to someone so that his

15 “storage” could be paid—more specifically, it was Mr. Patrick’s “storage” and

16 Defendant was going to make sure it got paid. Defendant also stated that he was

17 going to go get Mr. Patrick some “hygeine.” From this conversation, Deputy Loomis

18 concluded that Defendant was telling Mr. Patrick that he would obtain some

19 “hygiene” and send something into the jail in the hygiene.

20   {45}   The second call was made on August 14, 2013 at 3:54 p.m.—the day before

21 Ms. Ramirez dropped off the hygiene products at the jail. The call proceeded as

22 follows:

23          Mr. Patrick: I just talked to the sergeant about that money to get
24                       released. She said that they can come pick it up now.

                                               22
 1
 2          Defendant: Oh, they can pick it up now? Because my sister called
 3                     earlier, like about at noon bro, and the lady up front said
 4                     that they had received no request from nobody in weeks
 5                     to pick up any money or nothing.

 6                ....

 7          Mr. Patrick: Tell her to come up here and if they give her any problems,
 8                       ask for Sergeant Lujan.
 9
10                ....

11          Defendant: Alright, I’ll do that for you and I’ll make sure your storage
12                     gets paid, bro. Promise.

13   {46}   Deputy Loomis summarized the second telephone call conversation as Mr.

14 Patrick conveying to Defendant that the money was ready to be released to whomever

15 was coming to pick it up, to which Defendant responded that he would send his sister

16 and make sure the “storage” was paid.

17   {47}   The third call was made on August 16, 2013, at 9:07 a.m. The call proceeded

18 as follows:

19          Mr. Patrick: Whatever happened?

20          Defendant: Your storage got paid, perro.

21          Mr. Patrick: Oh, it did?

22          Defendant: Mmm hmm.

23          Mr. Patrick: I don’t know, right on. I appreciate it. I’ve got some
24                       property. Did you send me some property.


                                              23
 1          Defendant: Yeah.

 2          Mr. Patrick: Yeah? Cause I got a toothbrush and all that, but, but I
 3                       thought you was gonna get . . . [inaudible]

 4          Defendant: Oh shit. My bad.

 5          Mr. Patrick: Yeah, cause nada.

 6          Defendant: Hmm?

 7          Mr. Patrick: Nada. Didn’t get any.

 8                ....

 9          Mr. Patrick: What all did you get me?

10          Defendant: I sent my cousin to the store, you know what I mean?
11                     And I told her to get lotion, toothpaste, toothbrush, body
12                     wash, shampoo, and deodorant and deodorant. So I told
13                     her.

14          Mr. Patrick: Yeah, well there wasn’t, what I. There was just a
15                    toothbrush, toothpaste, lotion, body wash. That was it.

16          Defendant: Damn. That’s not what’s up, bro. I’ll go get on her ass
17                     then.

18                ....

19          Mr. Patrick: Check it out.

20   {48}   Summarizing this conversation, Deputy Loomis testified that Mr. Patrick told

21 Defendant that he did not get the deodorant that he was supposed to receive, to which

22 Defendant responded that he would “get on” his cousin’s “ass” about the problem.


                                              24
 1 Based on this conversation, Deputy Loomis concluded that “the deodorant was the

 2 key, having that then been intercepted with the drugs in it and then he [Defendant]

 3 had emphasized the deodorant, saying it twice that that was where it was sent in

 4 at—that he [Defendant] had to know how it was being sent in.”

 5   {49}   The fourth call was made on August 22, 2013. The call proceeded as follows.

 6          Mr. Patrick: Did you ever ask your cousin?

 7          Defendant: No.

 8          Mr. Patrick: No?

 9          Defendant: Nuh Uh.

10          Mr. Patrick: Shit.

11          Defendant: When I get paid bro, I mean, I didn’t have the time to get
12                     you no hygiene or nothing, dog. But you know what I’m
13                     saying? Like I said I get busy homey. . . . I’ll get around
14                     to it, dog. . . . I sent that person to go get some hygiene
15                     for me, man. I guess they didn’t do it, dog. My bad, dog,
16                     you know what I’m saying?

17          Mr. Patrick: Yeah.

18          Defendant: Do you have enough to hold you up and stuff, dog?
19
20          Mr. Patrick: Yeah, til next week. You know what I’m saying?

21          Defendant: Yeah, I haven’t had time to smoke and do shit, dog.

22                ....




                                             25
 1          Mr. Patrick: I don’t need a toothbrush, you know what I’m saying?
 2                       Just get all the other stuff if you can. You know what I’m
 3                       saying?

 4          Defendant: Okay, so except for the toothbrush, alright.

 5          Mr. Patrick: Yeah, [inaudible] toothbrush, you know.

 6          Defendant: Alright, I got you dog.

 7                ....

 8          Mr. Patrick: But yeah, but if you can try to do that for me this coming
 9                       week. You know what I’m saying?

10          Defendant: I will. Hey, you need some of that money on your book
11                     dog, or what?

12          Mr. Patrick: I don’t have anything right now, you know what I’m
13                       saying? I don’t got no money.

14                ....

15          Defendant: Oh shit.

16          Mr. Patrick: I was kind of hoping to get some money. But that’s cool,
17                       man. If you can, just get me some hygiene for next week,
18                       and I’ll be alright.

19          Defendant: Alright, homey. I’ll see what I can do, dog, okay?

20          Mr. Patrick: Okay, I appreciate it, dog.

21   {50}   Summarizing this final conversation between Defendant and Mr. Patrick,

22 Deputy Loomis testified that Mr. Patrick asked Defendant again about hygiene

23 products that he wanted. Deputy Loomis testified that Defendant responded that he

                                              26
 1 had not had time to get Mr. Patrick hygiene and that he had sent a person to do it, but

 2 guessed that the person had not followed through. Deputy Loomis also testified that

 3 in the over one-thousand jailhouse phone calls that he has reviewed in his career as

 4 an investigator that individuals arranging to bring contraband into the jail often use

 5 code words to describe their illegal activities. They frequently “use other words:

 6 delivery, stuff. Things that don’t really fit into the conversation, but they don’t raise

 7 a flag immediately.”

 8   {51}   Based on all of the evidence available to him, Deputy Loomis testified that he

 9 concluded that in the four phone calls between Defendant and Mr. Patrick, the two

10 were discussing that using Mr. Patrick’s money from the jail, Defendant “was going

11 to obtain contraband, illegal narcotics, and then send them into the jail through a third

12 person in hygiene products.”

13 B.       Notwithstanding the Absence of Ms. Ramirez’s Testimony, the Direct
14          and Circumstantial Evidence Presented at Trial Was Sufficient to
15          Support Defendant’s Convictions

16   {52}   First, the State presented substantial evidence to establish that Ms. Ramirez

17 dropped off hygiene products containing methamphetamine and synthetic

18 cannabinoids to Mr. Patrick while he was incarcerated at CCDC. The evidence

19 showed that on August 15, 2013, Ms. Ramirez visited CCDC to drop off hygiene

20 products to Mr. Patrick. These hygiene products included shampoo, toothpaste, a


                                              27
 1 toothbrush, and deodorant. The evidence also showed that during an inspection of the

 2 hygiene products that Ms. Ramirez dropped off for Mr. Patrick, Officer Marshall

 3 found a green leafy substance and crystal-like substance wrapped in small baggies the

 4 size of marbles in the bottom of the deodorant sticks, which Officer Marshall turned

 5 over to her supervisor and which were later identified by the State’s crime lab as

 6 methamphetamine and the synthetic cannabinoids: 5F-PB22 and PB-22.

 7   {53}   Additionally, viewing the evidence in the light most favorable to the guilty

 8 verdicts and indulging all reasonable inferences in favor of the verdicts, we conclude

 9 that the State presented substantial evidence to sustain Defendant’s convictions

10 beyond a reasonable doubt. The four phone calls between Defendant and Mr. Patrick

11 showed that through the use of code words that the two were discussing, that with Mr.

12 Patrick’s money from the jail, Defendant “was going to obtain contraband” in the

13 form of substances (methamphetamine and synthetic cannabinoids) that he knew to

14 be illegal narcotics and then attempt to transfer them into the jail for Mr. Patrick. This

15 was made evident circumstantially by Defendant and Mr. Patrick’s telephone

16 conversations discussing the release of money by Mr. Patrick to Defendant to pay his

17 “storage” and purchase “hygiene” for Mr. Patrick, as well as by Defendant’s emphasis

18 on and Mr. Patrick’s concern over the deodorant sticks that Defendant’s “sister” or




                                               28
 1 “cousin” (Ms. Ramirez) attempted to deliver to Mr. Patrick on August 15, 2013,

 2 which contained methamphetamine and synthetic cannabinoids.

 3   {54}   It was equally apparent circumstantially from the evidence that Defendant

 4 intended and agreed with another through words or acts to transfer methamphetamine

 5 and synthetic cannabinoids to Mr. Patrick in hygiene products. Through the telephone

 6 conversations between Defendant and Mr. Patrick, the State showed that an

 7 agreement was made between Defendant and Mr. Patrick and Defendant and Ms.

 8 Ramirez that Defendant would provide to his sister or cousin (Ms. Ramirez)

 9 methamphetamine and synthetic cannabinoids to transfer or attempt to transfer to Mr.

10 Patrick in hygiene products. These agreements were evident by Defendant’s surprise

11 that the hygiene products, containing the methamphetamine and synthetic

12 cannabinoids, which he had directed Ms. Ramirez to deliver to CCDC never actually

13 made it to Mr. Patrick and by Defendant’s statement that he would “get on” Ms.

14 Ramirez’s “ass” for failing to follow through with their agreement.

15   {55}   Based on all of the direct and circumstantial evidence, we conclude that a

16 reasonable juror could have found Defendant guilty of all counts, notwithstanding the

17 absence of Ms. Ramirez’s testimony at trial.

18 IV.      Defendant’s Remaining Claims of Fundamental and Plain Error

19   {56}   “To preserve an issue for review, it must appear that a ruling or decision by the


                                               29
 1 trial court was fairly invoked.” Rule 12-321(A) NMRA. However, “[t]his rule does

 2 not preclude a party from raising or the appellate court, in its discretion, from

 3 considering . . . issues involving . . . plain error[ or] fundamental error[.]” Rule 12-

 4 321(B)(2)(b), (c). “The doctrine of fundamental error is applied only under

 5 extraordinary circumstances to prevent the miscarriage of justice.” State v. Maestas,

 6 2007-NMSC-001, ¶ 8, 140 N.M. 836, 149 P.3d 933. Fundamental error power is

 7 exercised only to correct injustices that shock the conscience of the court, a term that

 8 has been used in our appellate courts’ precedents “both to describe cases with

 9 defendants who are indisputably innocent, and cases in which a mistake in the process

10 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the

11 accused.” State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633.

12 Similarly, “[p]lain error applies only where the substantial rights of the accused are

13 affected” and the claimed error “created grave doubts concerning the validity of the

14 verdict.” State v. Miera, No. A-1-CA-34747, 2017 WL 5794129, ___-NMCA-___,

15 ¶ 13, ___ P.3d ___ (Nov. 27, 2017).

16 A.       The State Properly          Charged       Defendant      with    Trafficking
17          Methamphetamine

18   {57}   Claiming fundamental error, Defendant argues that even assuming that the

19 evidence was sufficient to establish that Defendant directed Ms. Ramirez to deliver

20 methamphetamine to Mr. Patrick while he was incarcerated in CCDC, this conduct

                                              30
 1 constituted being an accessory to bringing contraband into the jail, and should have

 2 been charged as such. See NMSA 1978, § 30-22-14(B), (C)(4) (2013) (“Bringing

 3 contraband into a jail consists of knowingly and voluntarily carrying contraband into

 4 the confines of a county or municipal jail.” “[C]ontraband” includes “a controlled

 5 substance, as defined in the Controlled Substances Act[.]”); NMSA 1978, § 30-1-13

 6 (1972) (“A person may be charged with and convicted of the crime as an accessory

 7 if he procures, counsels, aids or abets in its commission and although he did not

 8 directly commit the crime and although the principal who directly committed such

 9 crime has not been prosecuted or convicted[.]”).

10   {58}   Assuming without deciding that the State could have charged Defendant as an

11 accessory to bringing contraband into a jail, the facts conceded by Defendant—that

12 Defendant directed Ms. Ramirez to deliver methamphetamine to Mr. Patrick while

13 incarcerated in CCDC—were also sufficient to charge him with trafficking

14 methamphetamine. See § 30-31-20(A)(2)(c) (stating that “ ‘traffic’ means the . . .

15 distribution, sale, barter or giving away of . . . methamphetamine, its salts, isomers

16 and salts of isomers”); State v. Ogden, 1994-NMSC-029, ¶ 20, 118 N.M. 234, 880

17 P.2d 845 (“So long as the prosecutor has probable cause to believe that the accused

18 committed an offense defined by statute, the decision whether or not to prosecute, and

19 what charge to file or bring before a grand jury, generally rests entirely in his [or her]


                                               31
 1 discretion.” (alteration, internal quotation marks, and citation omitted)). Accordingly,

 2 we conclude that the prosecutor’s decision to charge Defendant under the trafficking

 3 statute was well within the limits of its prosecutorial discretion and did not give rise

 4 to fundamental error. See State v. Santillanes, 2001-NMSC-018, ¶ 21, 130 N.M. 464,

 5 27 P.3d 456 (stating that “the [s]tate has broad discretion in charging” criminal

 6 offenses (internal quotation marks and citation omitted)).

 7 B.       Defendant’s Sentence to a Second Degree Felony for Conspiracy Did Not
 8          Give Rise to Fundamental Error

 9   {59}   Defendant next claims that the jury’s verdict for Count 3 was unclear, and that

10 as a result, his sentence to a second-degree felony was excessive and amounted to

11 fundamental error. Defendant contends that the lack of clarity in the jury’s verdict

12 stemmed from the conspiracy instruction, which provided that the jury could convict

13 Defendant of the charge in Count 3 if it found that he either conspired to traffic

14 controlled substances “or” conspired to distribute synthetic cannabinoids. And since

15 the jury was not asked to differentiate between the two allegations on the guilty

16 verdict form for Count 3, that stated “[w]e find [D]efendant GUILTY of Count 3

17 Trafficking controlled substances (distribution)(narcotic or meth) - conspiracy[,]”

18 Defendant contends that it was uncertain whether he was convicted of conspiracy to

19 traffic controlled substances or conspiracy to distribute synthetic cannabinoids.

20 Defendant therefore concludes that without a specific finding on the conspiracy

                                              32
 1 charge, “he should have only been sentenced to the lesser penalty for conspiracy” to

 2 distribute synthetic cannabinoids.

 3   {60}   We agree with Defendant that there was a discrepancy in the drafting of the

 4 jury instruction and verdict forms for Count 3 in that the jury instruction, but not the

 5 verdict forms, distinguished between conspiracy to traffic controlled substances and

 6 conspiracy to distribute synthetic cannabinoids as alternative theories of guilt for

 7 Count 3. However, the district court’s failure to give jury verdict forms for Count 3

 8 that distinguished between conspiracy to traffic controlled substances and conspiracy

 9 to distribute synthetic cannabinoids did not invade Defendant’s fundamental rights

10 and did not give rise to fundamental error. See State v. Herrera, 1922-NMSC-035,

11 ¶¶ 1-3, 28 N.M. 155, 207 P. 1085 (holding that the district court’s failure to give

12 verdict forms, under which a verdict of guilty as to one or more of them and not a

13 guilty verdict as to the others might be rendered where the jury was instructed that

14 such a verdict was possible, did not invade the defendant’s fundamental rights and

15 did not give rise to fundamental error).

16   {61}   Additionally, as the State writes in its brief, “exactly the same evidence

17 supports both conspiracy crimes, making it inconsistent for the jury to find

18 [Defendant] guilty of” conspiracy to distribute synthetic cannbinoids, but not

19 conspiracy to traffic controlled substance. Accordingly, “because [first degree felony]


                                              33
 1 trafficking was the highest crime conspired to be committed, [Defendant] was

 2 correctly sentenced to a second degree felony.” See NMSA 1978, § 30-28-2(B)(1)

 3 (1979) (providing that “if the highest crime conspired to be committed is a capital or

 4 first degree felony, the person committing such conspiracy is guilty of a second

 5 degree felony”).

 6 C.       The Prosecutor’s Comments Concerning Ms. Ramirez’s Reason for Not
 7          Testifying at Trial Did Not Constitute a Fundamental Error

 8   {62}   During closing argument, the prosecutor commented that:

 9          [Defendant is] trying to cast all the blame on Nicole, but what’s her
10          motive to do this? She hasn’t one. I’m sure she doesn’t want to testify.
11          You heard from the officer, she was uncooperative. She’s still family.
12          She still has to face these people. She doesn’t want to show up and
13          testify. She doesn’t want to cooperate with the police. But you know
14          what, all the circumstantial evidence coming together, she doesn’t have
15          to. Because we have the conversations. We have Mr. Patrick’s testimony
16          where he says: I’m a drug user. I’m a drug dealer.

17 Defendant argues that fundamental error resulted from this comment because his

18 statement that Ms. Ramirez “still has to face these people” insinuated “that she did

19 not appear because she is afraid of Mr. Salazar.” We disagree. See State v. Sosa,

20 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348 (“Fundamental error occurs

21 when prosecutorial misconduct in closing statements compromises a defendant’s right

22 to a fair trial[.]”); State v. Trujillo, 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d

23 814 (“Prosecutorial misconduct rises to the level of fundamental error when it is so


                                              34
 1 egregious and had such a persuasive and prejudicial effect on the jury’s verdict that

 2 the defendant was deprived of a fair trial.” (internal quotation marks and citation

 3 omitted)); State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (stating

 4 that in determining whether a defendant was deprived of a fair trial, the appellate

 5 courts “review the [challenged] comment in context with the closing argument as a

 6 whole” in order to “gain a full understanding of the comments and their potential

 7 effect on the jury.” (internal quotation marks and citation omitted)).

 8   {63}   Considering the prosecutor’s comment that Ms. Ramirez “still has to face these

 9 people” in context with the closing argument as a whole, we conclude the

10 prosecutor’s statement did not give rise to fundamental error. The State simply argued

11 that the evidence presented in the case was sufficient to convict Defendant

12 notwithstanding the fact that Ms. Ramirez chose not to cooperate with the police or

13 take the stand to testify against her cousin, Defendant. This comment was neither

14 “egregious” nor so “persuasive and prejudicial . . . on the jury’s verdict that

15 [D]efendant was deprived of a fair trial.” See Trujillo, 2002-NMSC-005, ¶ 52; State

16 v. McDowell, No. S-1-SC-35245, 2018 WL 286126 , ___-NMSC-___, ¶¶ 18, 23-24,

17 34-35, ___ P.3d ___ (Jan. 4, 2018) (holding that the admission of prosecutor’s

18 unobjected to comments and eliciting of testimony from a witness concerning the




                                              35
 1 defendant’s assertion of his fundamental right to remain silent was so prejudicial so

 2 as to give rise to fundamental error).

 3 D.       Admission of Officer Barela’s Testimony Did Not Constitute Plain Error

 4   {64}   Deputy Loomis testified on cross-examination that he did not know if

 5 Defendant had cousins other than Ms. Ramirez, whether she had any other relatives

 6 in CCDC, whether she had ever brought items for other inmates, or whether Ms.

 7 Ramirez had ever been in jail or otherwise been involved in a gang.

 8   {65}   During a bench conference and in response to Deputy Loomis’ testimony, the

 9 State argued that Defendant had opened the door to the State calling Defendant’s

10 probation officer, Officer Barela, to testify by insinuating that Ms. Ramirez acted

11 alone in bringing controlled substances into CCDC and that Defendant had no

12 knowledge of Ms. Ramirez’s plan. The district court ruled that it would permit

13 Officer Barela to testify outside the presence of the jury to determine whether her

14 testimony was admissible. After Officer Barela’s testimony outside the presence of

15 the jury, Defendant conceded that if he called Mr. Patrick to testify, then that would

16 “certainly” open the door to Officer Barela’s testimony. The district court agreed that

17 Officer Barela should be permitted to testify, but instructed the State that Officer

18 Barela could not testify as to the nature of the offense for which Defendant was on

19 probation. Defendant later called Mr. Patrick to testify.


                                             36
 1   {66}   Defendant now contends that the district court erred in admitting Officer

 2 Barela’s testimony. However, we conclude that by calling Mr. Patrick to testify,

 3 Defendant waived his objection to admission of Officer Barela’s testimony. See State

 4 v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P.2d 1266 (“Acquiescence in

 5 the admission of evidence, . . . constitutes waiver of the issue on appeal.”).

 6 Accordingly, we decline to exercise our discretion under Rule 12-321(B)(2) to

 7 analyze Defendant’s appellate challenge to the admission of Officer Barela’s

 8 testimony “for the first time on appeal.” See Campos, 1996-NMSC-043, ¶ 47 (“The

 9 doctrine of fundamental error cannot be invoked to remedy the defendant’s own

10 invited mistakes.”).

11 CONCLUSION

12   {67}   For the foregoing reasons, we affirm the district court’s judgment and sentence.

13   {68}   IT IS SO ORDERED.


14                                           _________________________________
15                                           MICHAEL E. VIGIL, Judge




                                               37
1 WE CONCUR:



2 ______________________________________
3 JULIE J. VARGAS, Judge



4 ______________________________________
5 TIMOTHY L. GARCIA, Judge Pro Tempore




                                  38
