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

STATE OF NEW MEXICO , 2

Plaintiff

- Appellee
, 3

v. A

- 1

- CA

- 35014 4

BRIAN BEARD , 5

Defendant

- Appellant

. 6

AP PEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Alisa A. Hadfield , District Judge 8

Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John Kloss , Assistant Attorney General 11 Albuquerque , NM 12
for Appellee 13

Bennett J. Baur, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM 16
for Appellant 17

MEMORANDUM OPINION 18

VARGAS , Judge. 192

{1} Defendant Brian Beard appeals his convictions for trafficking by possession 1
with intent to distribute; tampering with evidence; resisting, evading, or 2
obstructing an officer; possession of drug paraphernalia; and battery upon a peace 3

officer

. Defendant raises the following issues: double jeopardy, improper expert 4
witness testimony, sufficiency of the evidence, improper prosecutorial comment on 5
his right to remain silent, and im proper exclusion of his proposed jury instructions

. 6
We conclude Defendant’s convictions for both battery upon a peace officer and 7
resisting, evading, or obstructing an officer violate the prohibition against double 8
jeopardy. We therefore remand to the dist rict court to vacate Defendant’s 9
conviction for resisting, evading, or obstructing an officer. We affirm Defendant’s 10
remaining convictions. 11

BACKGROUND 12

{2 } Detectives Daniel Porter and Erik Meek witnessed what appeared to be a 13
drug transaction between a fem ale and Defendant

. They approached Defendant, 14

who was alone inside his vehicle with the driver

- side window down

. Unable to exit 15
his vehicle, Defendant kicked Detective Porter twice through the driver

- side 16
window, and then attempted to climb through that wi ndow

. The detectives 17
ultimately arrested Defendant and discovered a bag containing thirteen crack 18

cocaine rocks in between his buttocks

. Because this is a memorandum opinion and 193

the parties are familiar with the facts and procedural history of this case, w e 1
reserve discussion of the pertinent facts for our analysis. 2

I. DISCUSSION 3

{3 } Defendant argues the following issues on appeal: (1) his convictions for 4
battery upon a peace officer and resisting, evading, or obstructing an officer 5
constitute multiple puni shments for the “same offense” as prohibited by the double 6
jeopardy clauses of the United States and New Mexico Constitutions ; (2) the 7
district court erred in permitting Detective Porter to testify as an expert witness; (3) 8
the State did not produce suffic ient evidence to support Defendant’s convictions 9
for trafficking by possession with intent to distribute and tampering with evidence; 10
(4) the district court erred in failing to grant a mistrial after the State commented 11

on Defendant’s silence ; and (5) the district court erred in refusing to give jury 12

instructions on self

- defense and unlawfulness related to the battery charges

. We 13
address each argument in turn. 14

A. Defendant’s Convictions for Both Battery U pon a Peace Officer and 15 Resisting, Evading, or Obstructing an Officer Violate the Prohibition 16 Against Double Jeopardy 17

{4 } The United States and New Mexico Constitutions both prohibit any person 18
from being “twice put in jeopardy” for the same offense. U.S. Const. amend. V; 19

N.M. Const. art. II, § 15. “Defendant need not have preserved this issue in order to 20
raise it on appeal.” State v. Sotelo , 2013

- NMCA

- 028, ¶ 18, 296 P.3d 1232. 214

“Double jeopardy presents a question of law, which we review de novo.” Id. 1
(internal quotation marks and citation omitted). The double jeopardy prohibition 2
against multiple punishments “relates to two g eneral categories of cases: cases in 3
which a defendant has been charged with multiple violations of a single statute 4
based on a single course of conduct, known as ‘unit of prosecution’ cases; and 5
cases in which a defendant is charged with violations of mul tiple statutes for the 6
same conduct, known as ‘double

- description’ cases.” State v. DeGraff , 2006

- 7

NMSC

- 011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Defendant raises a double

8
description argument, arguing he was convicted of battery upon a peace officer and 9

resist ing, evading, or obstructing an officer based on the same conduct. 10

{5 } Our Supreme Court “synthesized the many varied theories set forth in both 11
New Mexico and federal decisional law to come up with a single test for multiple 12
punishment cases.” State v. Fr azier , 2007

- NMSC

- 032, ¶ 14, 142 N.M. 120, 13

164 P.3d 1 (citing Swafford v. State , 1991

- NMSC

- 043, ¶ 8, 112 N.M. 3, 810 P.2d 14
1223). “The synthesis performed in Swafford resulted in our [Supreme Court’s] 15
adoption of what is generally a two

- part inquiry for doub le

- description claims, first 16
analyzing whether the conduct underlying the offenses is unitary, i.e. , whether the 17
same conduct violates both statutes, and, if so, proceeding to analyze whether the 18

[L] egislature intended to create separately punishable offen ses.” State v. Gutierrez
, 195

2011

- NMSC

- 024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks 1
and citation omitted). 2

1. Unitary Conduct 3

{6 } Defendant asserts his conduct underlying the convictions for battery upon a 4
peace officer and resisting, evad ing, or obstructing an officer was unitary

. 5
“Separate punishments are permissible and conduct is not unitary if the offenses 6
are separated by sufficient indicia of distinctness.” State v. Ford , 2007

- NMCA

7
052, ¶ 12, 141 N.M. 512, 157 P.3d 77 (internal quota tion marks and citation 8
omitted). “To determine whether a defendant’s conduct was unitary, we consider 9
such factors as whether the acts were close in time and space, their similarity, the 10
sequence in which they occurred, whether other events intervened, an d a 11
defendant’s goals for and mental state during each act.” Id. “The conduct question 12
depends to a large degree on the elements of the charged offenses and the facts 13
presented at trial.” State v. Franco , 2005

- NMSC

- 013, ¶ 7, 137 N.M. 447, 112 P.3d 14
1104 (in ternal quotation marks and citation omitted). “The proper analytical 15
framework is whether the facts presented at trial establish that the jury reasonably 16
could have inferred independent factual bases for the charged offenses.” Id

. 17
(internal quotation marks and citation omitted). 18

{7 } The conduct underlying Defendant’s convictions for battery upon a peace 19
officer and resisting, evading, or obstructing an officer was unitary. Defendant’s 206

convictions were based on his actions following Detective Porter and Detective 1
Meek’s approach. After the detectives announced their presence, Defendant 2
attempted to open the driver

- side door with his left hand while his right hand was 3

behind his back

. To prevent Defendant from exiting the vehicle, Det ective Porter 4
pressed his body against the door

. Defendant then attempted to open the door with 5
both hands before realizing Detective Porter was holding it shut

. With the window 6
already rolled down, Defendant rotated onto his back, put his feet up, and kic ked 7

Detective Porter twice in the chest

. When Defendant kicked Detective Porter the 8
second time, Detective Porter grabbed Defendant’s legs. 9

{8 } Seeing this, Detective Meek ran from the passenger side toward the driver

10

side to assist Detective Porter

. As D etective Meek ran to the driver

- side, Defendant 11
“squatted his body” and attempted to either lunge toward the passenger

- side door 12
or escape from Detective Porter’s grasp

. Detective Meek ran back toward the 13

passenger

- side of the vehicle, and Detective Porter continued to hold onto 14
Defendant’s legs

. With both legs out of the driver

- side window, Defendant reached 15

out of the driver

- side window, grabbed the top of his vehicle, and attempted to pull 16
himself through the window

. As Defendant was doing this, Detectiv e Porter 17
“pressed him back in the vehicle, trying to

. . . hold him back in the vehicle.” 18
Detective Porter then pulled out his gun, at which point Defendant followed 19
Detective Porter’s orders and was ultimately arrested

. 207

{9 } The State acknowledges that th e record does not establish much separation 1
of time between the acts constituting the bases for the two separate charges

. The 2
record further establishes that these events occurred in the same space and in close 3
sequence, and involved the same victim

. After being told by the detectives to show 4
his hands, Defendant attempted to exit the vehicle. Unable to do so, Defendant 5
kicked Detective Porter through the open driver

- side window, proceeded to lunge 6
toward the passenger

- side door, and attempted to escape thr ough the driver

- side 7
window. Moreover, the acts were similar. Defendant’s acts of resisting, abusing, 8
and kicking Detective Porter all occurred after Detective Porter announced his 9
presence and told Defendant to show his hands. Thus, all of these acts toge ther 10
could reasonably be viewed as having originated from Detective Porter’s attempt 11
to investigate a possible narcotics transaction while at the same time ensuring his 12
and Detective Meek’s safety. Finally, Defendant’s goals for and mental state 13
during eac h act support a conclusion that Defendant’s conduct was unitary. All of 14
the acts could reasonably be viewed as stemming from Defendant’s goal of 15
resisting or abusing Detective Porter as he performed his duties. 16

{1 0 } The parties rely on different opinions from this Court to support their 17
argument in favor of or against the conduct being unitary

. Compare Ford , 2007

- 18

NMCA

- 052, ¶¶ 13

- 16 (concluding a defendant’s conduct where he kicked an 19
officer while being arrested and handcuffed was unitary for purposes of b attery of 208

an officer and resisting, evading, or obstructing an officer), with State v. Lopez
, 1

2008

- NMCA

- 111, ¶¶ 10, 12

- 13, 144 N.M. 705, 191 P.3d 563 (concluding a 2
defendant’s flight from, and subsequent returning to and punching of, an officer 3

were not un itary for purposes of battery of an officer and resisting, evading, or 4
obstructing an officer). While the defendant in Ford was being arrested, he 5
attempted to “loosen” the officers’ grip on him and kicked one officer in the leg as 6
they handcuffed him. 200 7

- NMCA

- 052, ¶ 13. We held that because the 7
defendant’s acts of resistance and battery occurred close in time and were 8
“similar,” his conduct was unitary. Id . ¶¶ 13

- 16. In Lopez , an officer pulled over 9
the defendant’s vehicle, at which point the defendant e xited his vehicle and ran 10
away. 2008

- NMCA

- 111, ¶ 2. After being chased by the officer for quite some 11
time, the defendant “turned to face the officer, taking a defensive attack 12

posture,

. . . [and] punched him twice in the face[.]” Id . ¶¶ 2

- 3 (internal quot ation 13
marks omitted) . This Court held the defendant’s “conduct in returning to the 14
officer and punching him in the face constituted a change from his act of fleeing 15
sufficient to determine that the two offenses were not unitary.” Id . ¶ 10. 16
Additionally, we distinguished the “protracted fleeing [,]” stopping, changing 17
course, physically confronting and punching the officer, present in Lopez , from the 18

acts in Ford because the defendant’s acts in Ford of resistance and battery were 19
similar, little time elapsed between the events, and the acts could “arguably be 209

characterized as incidental contact during an arrest and part of the struggle that 1
constituted the resisting of that arrest[.]” 2008

- NMCA

- 111, ¶¶ 11

- 12. 2

{1 1 } Before applying either Ford or Lopez to the case at hand, we note that 3
resisting, evading, or obstructing an officer is an offense that may be charged in 4
four alternate ways. See NMSA 1978, § 30

- 22

- 1 (1981). Our differing analyses in 5
the two cases appear to be based in part on two different ways of charging under 6

the statute. Compare Ford , 2007

- NMCA

- 052, ¶ 18 (noting that the state charged 7
the defendant with violating Section 30

- 22

- 1(D)), and § 30

- 22

- 1(D) (“Resisting, 8
evading or obstructing an officer cons ists of

. . . resisting or abusing any

. . . peace 9
officer in the lawful discharge of his duties.”), with Lopez , 2008

- NMCA

- 111, 10
¶¶ 10, 12 (explaining that the defendant engaged in the act of “fleeing,” but not 11
specifying which subsection of Section 30

- 22

- 1 the defendant was charged with 12
violating), and § 30

- 22

- 1(B) (“Resisting, evading or obstructing an officer consists 13

of

. . . intentionally fleeing , attempting to evade or evading an officer of this state 14
when the person committing the act of fleeing, atte mpting to evade or evasion has 15
knowledge that the officer is attempting to apprehend or arrest him[.]” (emphasis 16
added)). As Defendant was charged with violating Section 30

- 22

- 1(D) rather than 17

Section 30

- 22

- 1 (B), and because his acts were similar, close in time, place, and 18
sequence, and appear to stem from the same goal, Ford is applicable to the case at 1910

hand and we conclude Defendant’s conduct was unitary. We therefore proceed to 1
the second part of the Swafford analysis. 2

2. Legislative Intent 3

{1 2 } “The sol e limitation on multiple punishments is legislative intent, and, 4
unless the Legislature clearly authorized multiple punishments, we apply the test 5

articulated in Blockburger v. United States , 284 U.S. 299, 304 (1932), to determine 6

that intent.” Franco , 200 5

- NMSC

- 013, ¶ 12 (alterations, internal quotation marks, 7

and citation s omitted). Blockburger provides, “where the same act or transaction 8
constitutes a violation of two distinct statutory provisions, the test to be applied to 9
determine whether there are two offenses or only one, is whether each provision 10
requires proof of a fact which the other d oes not.” 284 U.S. at 304. “[T]he proper 11
inquiry focuses upon the elements of the statutes in question

— the evidence and 12
proof offered at trial are immaterial.” Swafford , 1991

- NMSC

- 043, ¶ 10. However, 13
our Supreme Court modified the Blockburger test, holding that “[i]f the statute is 14
vague and unspecific, or written in the alternative, courts must consider the 15
[s]tate’s legal theory in assessing whether each provision requires proof of a fact 16

which the other does not.” State v. Swick , 2012

- NMSC

- 018, ¶ 12, 279 P.3d 747 17
(internal quotation marks and citations omitted). When the Legislature has not 18
expressed its intent to punish the same conduct under more than one statute, “and 19
one statute is subsumed by the other, then convictions for both cannot stand.” Id

. 2011

¶ 24. Furthermore, “[a]s Swafford suggested, we treat statutes written in the 1
alternative as separate statutes for purposes of the Blockburger analysis.” Franco , 2

2005

- NMSC

- 013, ¶ 14. 3

{1 3 } As this Court has previously held, Section 30

- 22

- 1(D) (resisting, evad ing or 4
obstructing an officer) is a lesser offense of NMSA 1978, Section 30

- 22

- 24 (1971) 5
(battery upon a peace officer). Ford , 2007

- NMCA

- 052, ¶ 19. In Ford , we stated : 6
Under a statutory analysis, Section 30

- 22

- 1(D) requires resisting or 7 abusing the officer who is performing his duties. Section 30

- 22

- 24 8 refers to the same officer and the same duties. It requires a touching or 9 application of force in a rude, insolent, or angry manner. In a 10 discussion concerning “rude, insolent or angry,” it is indicated [in 11 S tate v. Padilla , 1983

- NMCA

- 096, 101 N.M. 78, 678 P.2d 706
, aff’d 12 in part, rev’d in part on other grounds by 1984

- NMSC

- 026, 101 N.M. 13 58, 678 P.2d 686 ] that one cannot resist or abuse without being rude, 14 insolent, or angry. The only difference is that batter y requires the 15 resisting or abusing to have culminated in a touching, while resisting 16 also prohibits lesser forms of resisting. Stated otherwise, one cannot 17 commit battery on a peace officer without also resisting or abusing 18 that officer contrary to Sectio n 30

- 22

- 1(D). 19

Ford
, 2007

- NMCA

- 052, ¶ 19; see State v. Diaz , 1995

- NMCA

- 137, ¶ 13 , 121 N.M. 20

28, 908 P.2d 258 (“Since a defendant cannot resist or abuse an officer without 21
being rude, insolent, or angry, the difference between Section 30

- 22

- 24 and 22

Section 30

- 22

- 1(D) is that a violation of the former culminates in an offensive 23
touching while a violation of the latter does not. Thus, a defendant cannot commit 24
peace officer battery without having also resisted or abused an officer.”). 25

Defendant’s conviction for violation of Section 30

- 22

- 24 subsumed his conviction 2612

for violation of Section 30

- 22

- 1, placing Defendant in double jeopardy. We 1
therefore vacate Defendant’s conviction for resisting, evading, or obstructing an 2

officer. 3

B. The District Court Did Not Err in Permitting Detective Porter to Testify 4 as an Expert Witness 5

{1 4 } Defendant next contends the district court erred in allowing Detective Porter 6
to testify as an expert witness

. Defendant’s argument is based on the State’s failure 7
to provide Defendant with advance notice of its intent to call Detective Porter as an 8
expert witness, Detective Porter’s limited experience, and the unreliability of 9
Detective Porter’s expert testimony. 10

1. Notice 11

{1 5 } Defendant first argues that the district court erred in allowing Detective 12
Porter to testify as an expert witness because the State did not provide timely 13
notice of its intent to call the detective as an expert

. In its initial disclosure of 14
witnesses, filed on April 12, 2011, the State notified the district court and defense 15

counsel of its intent to call Detective Porter as a witness

. Although defense counsel 16

asserted he had not received notice that Detective Porter would be called as an 17

e xpert , the State filed an amended notice, stating it intended to call Detective 18
Porter as an expert witness “regarding the trafficking of narcotics [
, ] ” more than 19

two weeks before the date of trial

. Defendant argues this late disclosure violated 20

both Rule 5

- 501 NMRA and Rule 5

- 505 NMRA. 2113

In considering whether late disclosure of evidence requires reversal, a 1 reviewing court will consider the following factors: (1) whether the 2 State breached some duty or intentionally deprived the defendant of 3 evidence; (2) wh ether the improperly non

- disclosed evidence was 4 material; (3) whether the non

- disclosure of the evidence prejudiced 5 the defendant; and (4) whether the [district] court cured the failure to 6 timely disclose the evidence. 7

State v. McDaniel , 2004

- NMCA

- 022, ¶ 8, 135 N.M. 84, 84 P.3d 701 (internal 8
quotation marks and citation omitted). 9

{1 6 } To establish the State’s breach of a duty, Defendant relies primarily on Rule 10

5

- 501 ( amended in 2015
, effective December 31, 2015 ) , which provides that 11
“within ten (10) days after arraignment

. . . the state shall disclose or make 12

available to the defendant

. . . a written list

. . . identifying any witnesses that will 13
provide expert testimony and indicating the subject area in which they will 14
testify[.]” Rule 5

- 501(A)(5) (201 5). However, the version of Rule 5

- 501 that was 15
in effect at the time of trial provided no such requirement. See Rule 5

- 501(A)(5) 16
(2013) (providing that “within ten (10) days after arraignment

. . . the state shall 17

disclose or make available to the defenda nt

. . . a written list of the names and 18
addresses of all witnesses which the prosecutor intends to call at trial, together with 19
any statement made by the witness and any record of prior convictions of any such 20
witness which is within the knowledge of the prosecutor”). The State being under 21
no obligation to identify Detective Porter as an expert witness under the rule as 22
written at the time, we cannot say that it violated either Rule 5

- 501 or Rule 2314

5

- 505(A) (2014) (“If, subsequent to compliance with Rule 5

- 5 01

. . . , and prior to 1
or during trial, a party discovers additional material or witnesses which he would 2
have been under a duty to produce or disclose at the time of such previous 3
compliance if it were then known to the party, he shall promptly give writt en 4
notice to the other party[.]” (emphasis added)). 5

{1 7 } Relying on Shamalon Bird Farm, Ltd. v. U nited S tates Fid elity & Guar anty 6

Co. , 1991

- NMSC

- 039, 111 N.M. 713, 809 P.2d 627, and State v. Orona , 1979

- 7

NMSC

- 011, 92 N.M. 450, 589 P.2d 1041, Defendant none theless argues that 8
notwithstanding the absence of language related to expert witnesses in the 2013 9

version of Rule 5

- 501, he suffered prejudice from the inability to pursue a potential 10

line of defense. Shamalon held the district court did not abuse its di scretion in 11
excluding the plaintiff’s expert witness’s testimony in part because the plaintiff 12
notified the defense of its intent to call the expert witness late in the proceeding, 13
and the defense would therefore “not have adequate time to prepare their cr oss

14
examination and trial strategy[.]” 1991

- NMSC

- 039, ¶¶ 2

- 3, 7. In reaching its 15
conclusion, however, our Supreme Court relied on Rule 1

- 026(B)(5)(a) NMRA 16
(1989), which provided that “[a] party may

. . . require any other party to identify 17
each person whom the other party expects to call as an expert witness at trial[.]” 18

Shamalon , 1991

- NMSC

- 039, ¶ 7. As we have stated above, Rule 5

- 501 (2013) 19
included no such language. 2015

{1 8 } Orona provides that “[n]o more prejud ice need be shown than that the 1

[district] court’s order may have made a potential avenue of defense unavailable to 2

the defendant.” 1979

- NMSC

- 011, ¶ 8. However, Orona involved the district 3
court’s order preventing defense counsel from interviewing the state’s main 4

witnesses. Id . ¶ 3. The district c ourt took no such action here. Indeed, defense 5
counsel had ample opportunity to interview Detective Porter following the State’s 6
initial disclosure of witnesses. Application of both Shamalon and Orona to the case 7
at hand is therefore misplaced. 8

{1 9 } Defend ant further argues the State’s disclosure did not comport with his due 9
process rights, relying on State v. Schoonmaker , 2008

- NMSC

- 010, ¶¶ 6

- 7, 40, 143 10
N.M. 373, 176 P.3d 1105 (concluding that under the Sixth Amendment to the 11

United States Constitution, the district court should have granted defense counsel’s 12
request to withdraw so the public defender could assume the defense costs)
, 13
overruled on other grounds by State v. Consaul , 2014

- NMSC

- 030, ¶ 38, 332 P.3d 14

850 ; State v. Allison , 2000

- NMSC

- 027, ¶¶ 6, 9, 1 6, 129 N.M. 566, 11 P.3d 141 15
(holding that to avoid “unwarranted prejudice which could arise from surprise 16
testimony [
, ] ” the state had a duty under the rules of criminal procedure to disclose 17
an unrelated arrest report to defense counsel before the defenda nt testified) ; and, 18
Reed v. Furr’s Supermarkets, Inc. , 2000

- NMCA

- 091, ¶¶ 3

- 6, 13, 129 N.M. 639, 11 19
P.3d 603 (explaining, in a civil case, that the party’s intentional deception during 2016

discovery undermined the design of the process, which “is to avoid surpr ise in trial 1
preparation and promote the opposing party’s ability to obtain the evidence 2
necessary to evaluate and resolve the dispute” (alteration, internal quotation marks, 3
and citation omitted) ). These cases, however, do not support Defendant’s assertio n 4
that the State’s late disclosure violated Defendant’s due process rights. 5

{20 } Regardless, even if we assume the State violated some duty, Defendant fails 6
to establish materiality or prejudice. “The test for materiality, the second factor, is 7
whether there is a reasonable probability that, had the evidence been disclosed to 8

the defen se, the result of the proceeding would have been different.” State v. 9

Duarte , 2007

- NMCA

- 012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 (internal quotation 10
marks and citation omitted) . Similarly, “determining whether the defendant has 11
been prejudiced, the third fac tor, [requires that] we look at whether the defense’s 12
case would have been improved by an earlier disclosure or how the defense would 13
have prepared differently for trial.” Id . (alteration, internal quotation marks, and 14
citation omitted). Defendant argues t he State’s late notice prevented him from 15
more thoroughly exploring Detective Porter’s expertise and proposed expert 16
testimony, and from obtaining his own expert witness

. Defendant “has not shown 17

how his cross

- examination would have been improved by an ear lier disclosure or 18
how he would have prepared differently for trial.” McDaniel , 2004

- NMCA

- 022, 19
¶ 14 (rejecting the defendant’s argument that his cross

- examination or pre

- trial 2017

preparation would have improved by an earlier disclosure because “[t]he question 1
of whether additional discovery might have benefi tted the defense is pure 2
speculation” (alteration, internal quotation marks, and citation omitted) ). 3

Moreover, Defendant filed no motions for a continuance before trial when the State 4

filed its amended witn ess notice listing Detective Porter as an expert, nor did he 5
seek one when the State tendered Detective Porter as an expert witness during trial. 6

See State v. Barraza , 1990

- NMCA

- 026, ¶ 13, 110 N.M. 45, 791 P.2d 799 7
(concluding a defendant’s failure to seek a continuance undermines his claim of 8
unfair surprise). Defendant has failed to demonstrate either materiality or 9
prejudice. 10

{ 2 1} We note that the district court neither explicitly ruled on nor took measures 11
to cure the alleged late disclosure issue

. Howe ver, in light of the other factors, we 12
decline to reverse Defendant’s convictions on these grounds. 13

2. Detective Porter’s Experience 14

{22 } Defendant also argues the district court erred in permitting Detective Porter 15
to testify as an expert in differentiating between personal use and trafficking 16
quantities of crack cocaine because he lacked sufficient experience. Rule 11

- 702 17
NMRA provides: 18
A witness who is qualified as an expert by knowledge, skill, 19 experience, training, or education may testif y in the form of an 20 opinion or otherwise if the expert’s scientific, technical, or other 2118

specialized knowledge will help the trier of fact to understand the 1 evidence or to determine a fact at issue. 2
“A witness may be admitted as an expert under Rule 11

- 70 2 upon the satisfaction 3
of three requirements: (1) that the expert be qualified; (2) that the testimony will 4
assist the trier of fact; and (3) that the expert’s testimony concern scientific, 5
technical or other specialized knowledge.” State v. Ruffin
, ___ - N MCA

- ___, ¶ 18, 6
___P.3d___ (No. A

- 1

- CA

- 35424, Oct. 22, 2018) (internal quotation marks and 7
citation omitted). “We review the [district] court’s admission of expert testimony 8

for an abuse of discretion.” State v. Torrez , 2009

- NMSC

- 029, ¶ 9, 146 N.M. 331, 9

210 P.3d 228. 10

{23 } Detective Porter testified that he had worked with the Albuquerque Police 11
Department (APD) since 1997, and was “sworn since 1999.” He worked in the 12
Southeast Area Command for two years, responding to any community needs and 13
doing “some unde rcover work.” He then spent two years in the Gang Unit in an 14
undercover capacity

. While in an undercover capacity, Detective Porter purchased 15
and sold narcotics, including crack cocaine

. He testified to selling “small 16
quantities” of crack cocaine and estim ated he had made fifty or more purchases of 17

narcotics while undercover. 18

{24 } For approximately half a year, Detective Porter worked in the Central 19
Narcotics Team, “which was a mid

- to high

- level narcotics team” associated with 20
the Region One Task Force

. Region One “was a narcotic region working drug 2119

cases within the region of New Mexico.” In that capacity, he would “work any 1
narcotic complaints or investigations” in the task force region

. After APD “pulled 2
out of the region task force” Detective Porter “b ecame a detective in a street 3
narcotics team, the Valley Narcotics Unit[,]” for approximately three and a half 4

years

. He then worked for approximately two years in the Middle Rio Grande 5
Valley Task Force. Following his time with the Middle Rio Grande Valle y Task 6
Force, Detective Porter worked as a task force officer with the Drug Enforcement 7
Administration (DEA) Task Force for approximately one year

. As a task force 8
officer, Detective Porter assisted in DEA investigations “for middle to high 9
quantities” of narcotics and started his own investigations. 10

{25 } Detective Porter moved to the Criminal Intelligence Unit for approximately 11
two years, where he worked with informants

. He spent his last year in the unit as 12
an acting sergeant

. Following his time in the C riminal Intelligence Unit, Detective 13
Porter returned to the APD Gang Unit, where he worked with informants and, 14
because of the “connection” between gangs and drugs, he had the opportunity to 15
work on drug cases

. He remained in this position at the time of t rial. 16

{26 } Detective Porter also testified about the training he received related to 17
narcotics, describing the numerous classes and conferences he attended regarding 18
narcotics and the narcotics trade. Detective Porter explained that he attended 19

around one thousand hours of narcotics

- related classes

. Additionally, he undertook 2020

over three hundred narcotics

- related investigations as either a case agent, a co

- case 1
agent, or an assisting officer and sometimes “utilize[d] an informant to assist in 2
these investiga tions [

. ] ” 3

{27 } In Detective Porter’s work with informants, whether they were drug dealers 4
or users, they provided him with information about how much they used on a daily 5

basis

. He gathered this information so he could “know what they’re buying, how 6

much they’re buying, what they’re using, [and] how much they’re using[.]” 7

Detective Porter would then use this information to ensure an informant’s normal 8
purchases were consistent with those made in “controlled buys,” wherein they 9
would give the informant, typ ically a drug user, “a specific amount of money for a 10
specific amount of drugs[.]” Detective Porter learned the “going rates for different 11
narcotics[,]” how a purchase is made, and how different drugs are packaged

. Based 12

on the evidence of Detective Porter ’s background, experience, training, and 13
knowledge in drug transactions, we cannot say that the district court abused its 14
discretion in permitting him to testify as an expert in differentiating between 15
personal use and trafficking quantities. Torrez , 2009

- NMSC

- 029, ¶ 9. 16

3. The Reliability of Detective Porter’s Expert Testimony 17

{28 } Defendant argues Detective Porter’s expert testimony was unreliable. In 18
determining initially whether expert testimony is competent under Rule 11

- 702, 19
“the [district] court must exercise its gate

- keeping function and ensure that the 2021

expert’s testimony is reliable.” Torrez , 2009

- NMSC

- 029, ¶ 21. To the extent 1
Defendant argues Detective Porter’s methodology was unreliable
, our Supreme 2
Court has made clear that “[t]he requirements th at scientific expert testimony be 3
grounded in valid, objective science and reliable enough to prove what it purports 4
to prove are inapplicable to expert testimony that is based on the expert’s 5
specialized knowledge.” Id . (internal quotation marks and citat ion omitted). It is 6
clear from the record that Detective Porter’s expert testimony was based on his 7
knowledge and experience, not on any scientific expertise. 8

{29 } “[R]ather than testing an expert’s scientific methodology as required under 9

Daubert [ v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993)] and [ State v. 10

Alberico , 1993

- NMSC

- 047, 116 N.M. 156, 861 P.2d 192], the [district] court must 11

evaluate a non

- scientific expert’s personal knowledge and experience to determine 12
whether the expert’s con clusions on a given subject may be trusted.” Torrez , 2009

- 13

NMSC

- 029, ¶ 21. The district court uses an expert’s skills, experience, training, or 14
education “to test the validity of the expert’s conclusions” and determine whether 15
the conclusions “prove what th ey purport to prove.” Id . ¶ 22; see also Ruffin
, ___ - 16

NMCA

- ___, ¶ 23 (concluding the district court should evaluate whether the expert 17
witness’s “conclusions are consistent with his specialized training and experience” 18
when testing the validity of his non

- s cientific expert testimony). 1922

{30 } In addition to his experience, Detective Porter testified that in most cases 1
crack cocaine is sold by the rock, not by its weight

. He explained that the weight of 2

a crack rock varies with the dealer; some sell rocks that w eigh one gram while 3
others sell “.2[,] .4 at most for an individual rock.” He testified that in most cases 4
when they would purchase crack cocaine from a low

- level dealer, the dealer would 5
“have just maybe a handful of rocks[.]” Furthermore, the low

- to mid

- level 6
traffickers they arrested were found with a range of three to twenty rocks, an 7
amount he said was consistent with trafficking

. Detective Porter testified that based 8
on his training and conversations with informants, people typically use “maybe one 9

t o two rocks a day[.]” However, the highest quantity of crack cocaine he had ever 10
heard someone smoke in a day was four rocks

. In light of his knowledge and 11
experience, we cannot say Detective Porter’s conclusions were unreliable. See 12

State v. Rael

- Gallegos , 2013

- NMCA

- 092, ¶ 21, 308 P.3d 1016 (explaining that the 13
reviewing court must consider whether the expert witness’s “knowledge and 14
experience were sufficient to support a determination that her conclusions 15
regarding the distinction between personal use am ounts versus trafficking amounts 16
of crack cocaine may be trusted”). 17

{ 3 1} Nonetheless, Defendant argues that Detective Porter’s expert testimony was 18
unreliable because of his investigative involvement in this case

. Defendant relies 19

on United States v. Dukag jini , 326 F.3d 45, 53 (2d Cir. 2003), in which the United 2023

States Court of Appeals for the Second Circuit noted such involvement confers 1
upon the expert “the aura of special reliability and trustworthiness surrounding 2
expert testimony[.]” Id. This Court, however, has recently rejected this concern. 3
See Ruffin
, ___ - NMCA

- ___, ¶ 31 (noting that our Supreme Court “rejected this 4
proposition” in Alberico , 1993

- NMSC

- 047, ¶ 36, when it concluded that the 5
“premise that juries are awed by the aura of the infallibility of expert opinion 6
testimony and thus defer to it is flawed speculation” (internal quotation marks 7
omitted) ). The Dukagjini court also noted “there is an increased danger that the 8
expert testimony will stray from applying reliable methodology and convey to the 9
jury the witness’s ‘sweeping conclusions’ about [ the defendants’] activities[.]” 326 10
F.3d at 54. Here, again, this Court rejected the Dukagjini court’s proposition, 11
explaining “that it is the responsibility of the district court to remai n vigilant and 12
ensure that the expert not stray from the scope of his/her expertise.” Ruffin
, ___ - 13

NMCA

- ___, ¶ 32. For these reasons, we conclude the district court did not err in 14
permitting Detective Porter to testify as an expert witness, and we proceed t o 15
Defendant’s arguments regarding the sufficiency of the evidence. 16

C. Defendant’s Convictions Were Supported by Substantial Evidence 17

{32 } Defendant challenges the sufficiency of the evidence supporting his 18
convictions for trafficking by possession with in tent to distribute, as well as 19
tampering with evidence

. “Jury instructions become the law of the case against 2024

which the sufficiency of the evidence is to be measured.” State v. Jackson , 2018

- 1

NMCA

- 066, ¶ 22, 429 P.3d 674, cert. denied , 2018

- NMCERT

- ___ (No. 2

S

- 1

- SC

- 37267, Oct. 15, 2018) (internal quotation marks and citation omitted). “In 3
reviewing the sufficiency of the evidence in a criminal case, we must determine 4
whether substantial evidence, either direct or circumstantial, exists to support a 5

verdict of guilty beyond a reasonable doubt for every essential element of the 6

crime at issue.” Rael

- Gallegos , 2013

- NMCA

- 092, ¶ 8 (internal quotation marks 7
and citation omitted). “Resolving all conflicts, indulging all permissible inferences 8
to uphold the conviction, and disregarding all evidence and inferences to the 9
contrary, we view the evidence in the light most favorable to the verdict to ensure 10
that a rational jury could have found each element of the crime established beyond 11

a reasonable doubt.” Id . (alteration , internal quotation marks, and citation omitted). 12

“It is for the fact

- finder to evaluate the weight of the evidence, to assess the 13
credibility of the various witnesses, and to resolve any conflicts in the evidence; 14
we will not substitute our judgment as t o such matters.” Id . (alteration, internal 15
quotation marks, and citation omitted). 16

{33 } With regard to Defendant’s trafficking conviction, the jury was instructed 17
that the State must prove beyond a reasonable doubt that Defendant (1) had 18
cocaine in his pos session, (2) knew or believed it was cocaine, and (3) intended to 19

transfer it to another

. Defendant argues the State did not present sufficient evidence 2025

of his intent to distribute

. “Intent to distribute may be inferred when the amount of 1
controlled substance possessed is inconsistent with personal use.” State v. 2

Hubbard , 1992

- NMCA

- 014, ¶ 9, 113 N.M. 538, 828 P.2d 971. “Intent may be 3
proved by inference from surrounding facts and circ umstances, such as quantity 4
and manner of packaging of the controlled substance.” Id

. 5

{34 } The detectives testified that they first saw Defendant at his home, where they 6
witnessed a vehicle “pull up to” Defendant’s home

. Defendant exited his home, 7

walked t o the vehicle, met with the driver of the veh icle, and returned to his home. 8
After the vehicle left, Defendant entered a vehicle and drove to an Arby’s

. 9
Detective Porter testified that when Defendant first pulled into the Arby’s parking 10
lot, a female appro ached Defendant’s vehicle, leaned into the driver

- side window, 11
and reached into the vehicle, which “was consistent with people’s hands in the 12
vehicle, like there was an exchange[.]” After a “short time” passed, the female 13
walked towards the Arby’s with not hing visible in her hands

. Defendant “circled” 14
through the parking lot and pulled into a parking spot, at which point the female 15
walked over to his car and “reached in to talk through [the] passenger window.” 16
Detective Porter described this activity as bei ng “consistent with drug trafficking.” 17

{35 } Furthermore, Detective Porter explained that an individual possessing a 18
range of three to twenty rocks of crack cocaine was consistent with trafficking

. He 19
and Detective Meek recovered a bag containing thirteen rocks of crack cocaine on 2026

Defendant’s person

. Given the quantity of crack cocaine found on Defendant’s 1
person, combined with the surrounding circumstances and Detective Porter’s 2
expert testimony, we hold that there was sufficient evidence from which the ju ry 3

could infer Defendant’s intent to distribute. See id . ¶ 15 (explaining that “[i]f the 4
amount of an illegal drug found in an accused’s possession is not by itself 5
sufficient to prove inconsistency with personal use, then the state must present 6
testimony that the amount of drugs in the accused’s possession is inconsistent with 7
personal use”). 8

{36 } As to the tampering conviction, Defendant’s sole argument is that because 9
there was only sufficient evidence of possession, rather than trafficking, he should 10

ha ve been convicted of fourth

- degree tampering, not a third

- degree felony. See 11

NMSA 1978, § 30

- 22

- 5(B)(2) (2003) (providing that “if the highest crime for 12
which tampering with evidence is committed is a third degree felony or a fourth 13
degree felony, the pers on committing tampering with evidence is guilty of a fourth 14
degree felony ” (emphasis added) ). However, as we have concluded above, there 15
was sufficient evidence to support Defendant’s conviction for trafficking by 16
possession with intent to distribute, a fi rst

- degree felony “for the second and 17
subsequent offenses [

. ] ” NMSA 1978, § 30

- 31

- 20(B)(2) (2006). Having been 18

convicted of a first

- degree felony due to a prior felony “[t]rafficking or 19
[d]istribution” conviction
, Defendant’s tampering with evidence convict ion is 2027

therefore supported by sufficient evidence. See § 30

- 22

- 5(B)(1) (providing that “if 1
the highest crime for which tampering with evidence is committed is a

. . . first 2
degree felony

. . . , the person committing tampering with evidence is guilty of a 3
third degree felony”). 4

D. The District Court Did Not Err in Denying Defendant’s Motion to 5 Dismiss on Grounds That the State Commented on His Right to Remain 6 Silent 7

{37 } Defendant contends the district court erred in denying its motion to dismiss 8

after t he State commented on Defendant’s right to remain silent

. In both his 9
opening statement and closing argument, defense counsel repeatedly stated that 10

Defendant was addicted to crack cocaine

. Defendant did not testify, and no 11
evidence was presented to suppor t defense counsel’s assertion that Defendant was 12
an addict. During the State’s rebuttal argument, it argued, “you have heard no 13

evidence that [Defendant] is a crack addict, none. That never came out of 14

. . . anybody’s mouth on the stand.” Defendant objecte d and moved for dismissal, 15
arguing the State implied “the only one that could have said that he was an addict 16
was the person who decided to not testify, based on his Fifth Amendment [r]ight.” 17

The district court denied Defendant’s motion. 18

{38 } “The privileg e against self

- incrimination prohibits the prosecutor from 19
commenting on a defendant’s failure to testify at trial.” State v. Smith , 2001

- 20

NMSC

- 004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (internal quotation marks and 2128

citation omitted). “Where the error is preserv ed, we review a district court’s denial 1
of a motion for mistrial on the basis of remarks made in closing argument for an 2

abuse of discretion.” State v. Ramos

- Arenas , 2012

- NMCA

- 117, ¶ 16, 290 P.3d 733 3
(alterations, internal quotation marks, and citations omitted). “An abuse of 4
discretion occurs where the district court acts in an obviously erroneous, arbitrary, 5

or unwarranted manner.” State v. Sena , 2018

- NMCA

- 037, ¶ 7 , 419 P.3d 1240, cert. 6
granted , 2018

- NMCERT

- ___ (No. S

- 1

- SC

- 36932, consolidated with No. S

- 1

- SC

7

36933 , May 25, 2018) (internal quotation marks and citation omitted). 8

{39 } Although Defendant stated in his brief in chief that he moved for a mistrial, 9

the Sta te correctly points out that Defendant moved to dismiss

. In so doing, the 10
State appears to argue that Defendant’s request for dismissal rather than a mistrial 11
did not sufficiently preserve the issue

. We note, however, that in ruling on 12
Defendant’s objectio n, the district court stated, “I will say that I think this is close, 13
but not far enough for a mistrial .” (Emphasis added

. ) Moreover, the State asserted 14
it had not commented on Defendant’s failure to testify

. In light of the district 15
court’s ruling and the State’s response, we assume for purposes of this appeal that 16
Defendant’s objection preserved the issue. See State v. Griffin , 2002

- NMCA

- 051, 17
¶ 5, 132 N.M. 195, 46 P.3d 102 (“The purpose of the preservation requirement is 18
twofold: (1) that the [district] c ourt be alerted to the error so that it is given an 19
opportunity to correct the mistake, and (2) that the opposing party be given a fair 2029

opportunity to meet the objection.” (internal quotation marks and citation 1
omitted)). 2

{40 } When reviewing challenges to closing arguments, three factors “carry great 3
influence in our deliberations: (1) whether the statement invades some distinct 4
constitutional protection; (2) whether the statement is isolated and brief, or 5
repeated and pervasive; and (3) whether the stateme nt is invited by the defense.” 6

State v. Sosa , 2009

- NMSC

- 056, ¶ 26, 147 N.M. 351, 223 P.3d 348. “In applying 7
these factors, the statements must be evaluated objectively in the context of the 8
prosecutor’s broader argument and the trial as a whole.” Id . Taken in context, the 9
State’s comment was a very brief part of its rebuttal argument. Moreover, the 10
comment was made in direct response to defense counsel’s repeated assertions that 11
were unsupported by the evidence. Accordingly, Defendant failed to show there 12

w as a violation of his Fifth Amendment rights. See Smith , 2001

- NMSC

- 004, 13
¶¶ 37, 40 (holding that because it was a brief part of the state’s closing argument 14
and was based on evidence presented at trial, there was no violation of the non

15
testifying defendant’s Fifth Amendment rights when the prosecutor stated in her 16
rebuttal argument that there was no testimony to support defense counsel’s factual 17
assertion made in closing argument). The district court did not abuse its discretion 18
in denying Defendan t’s motion. 19

E. The District Court Did Not Err When it Declined to Give Defendant’s 20 Jury Instructions 2130

{ 4 1} Finally, Defendant argues the district court erred in refusing to give jury 1

instructions on self

- defense and unlawfulness related to the battery cha rges

. “The 2
propriety of jury instructions is a mixed question of law and fact.” State v. 3

Contreras , 2007

- NMCA

- 119, ¶ 8, 142 N.M. 518, 167 P.3d 966 (internal quotation 4
marks and citation omitted). “When considering a defendant’s requested 5

instructions, we v iew the evidence in the light most favorable to the giving of the 6
requested instructions.” Id . (alteration, internal quotation marks, and citation 7
omitted). “Viewing the facts in that manner, we review the issue de novo.” Id

. 8
“When evidence at trial suppor ts the giving of an instruction on a defendant’s 9
theory of the case, failure to so instruct is reversible error.” Id

. (internal quotation 10
marks and citation omitted). 11

{42 } “[A] self

- defense instruction is required whenever or if a defendant presents 12

evidence sufficient to allow reasonable minds to differ as to all elements of the 13

defense.” State v. Ellis , 2008

- NMSC

- 032, ¶ 15, 144 N.M. 253, 186 P.3d 245 14
(alteration, internal quotation marks, and citation omitted). “[A] person has only a 15
qualified right to assert self

- defense against a police officer, because police officers 16
have a duty to make arrests and a right to use reasonable force when necessary.” 17

Id . “[A]lthough one doe s have a right to defend oneself from a police officer, it is 18
clear that this right is limited.” Id . (alterations, internal quotation marks, and 1931

citation omitted). “This limitation entitles one to assert self

- defense only when the 1
officer is using excessiv e force.” Id . ¶ 16. 2

{43 } Defendant argued in the district court that the jury could have rejected the 3

detectives’ testimonies: 4
They inflicted pain upon my client and, therefore, my client, in trying 5 to get away, he kicked or struck one of the police officers. And I 6 believe that is enough for self

- defense. Because the inference is that 7 there could have been excessive force on the p art of the officers, 8 whoever, Porter or Meek, whoever it is. And at that point, my client 9 decided to defend himself, not knowing or perhaps knowing, that they 10 were police officers, but that’s for the jury to decide. 11
(Emphasis added

. ) Defendant’s argument is predicated on the notion that the jury 12

could have found that he kicked Detective Porter after either he or Detective Meek 13
made physical contact with Defendant. However, the record demonstrates that 14

Defendant kicked Detective Porter before either Detecti ve Porter or Detective 15
Meek used any degree of force on Defendant. There being no evidence to support 16

Defendant’s contention that he kicked to defend himself after the detectives had 17
already used force on Defendant, the district court did not err in reject ing his 18
proposed jury instructions. See State v. Boyett , 2008

- NMSC

- 030, ¶ 12, 144 N.M. 19
184, 185 P.3d 355 (“A defendant is entitled to an instruction on his or her theory of 20
the case if evidence has been presented that is sufficient to allow reasonable mind s 21
to differ as to all elements of the offense.” (internal quotation marks and citation 22
omitted)); State v. Gonzales , 2007

- NMSC

- 059, ¶ 19, 143 N.M. 25, 172 P.3d 162 2332

(explaining that “there must be evidence to support” an instruction on self

- defense 1

to warra nt giving the instruction). 2

II. CONCLUSION 3

{44 } We conclude Defendant’s convictions for battery upon a peace officer and 4
resisting, evading, or obstructing an officer violate the prohibition against double 5
jeopardy. We therefore remand to the district cour t to vacate Defendant’s 6
conviction for resisting, evading, or obstructing an officer, and to resentence 7
Defendant accordingly. We further conclude that Defendant’s remaining claims of 8
error are without merit and affirm the district court on all other groun ds. 9

{45 } IT IS SO ORDERED. 10

__________________________________ 11 JULIE J. VARGAS , Judge 12

WE CONCUR: 13

_________________________________ 14 LINDA M. VANZI, Judge 15

_________________________________ 16 J ENNIFER L. ATTREP , Judge 17