1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-044

Filing Date: March 17, 2009

Docket No. 27,078

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

GERARDO RAMOS LOPEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY

J.C. Robinson, District Judge

Gary K. King, Attorney General

Andrea Sassa, Assistant Attorney General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Joseph P. Walsh, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant Gerardo Ramos Lopez appeals his convictions of possession with intent

to distribute marijuana (over 100 pounds) and conspiracy to commit possession with intent

to distribute marijuana (over 100 pounds). Border Patrol Agents observed Defendant driving

a red Ford Mustang in apparent tandem with a maroon Nissan in which police ultimately

found the drugs. At trial, there was testimony by a narcotics agent that Defendant owned the

Nissan. The agent’s testimony was based on her observations of a registration document in

the glove box of the Nissan and a printout of a registration check through the National Law
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Enforcement system. On appeal, Defendant argues that the testimony was inadmissible

hearsay and also that the State failed to introduce the documents relied on by the agent. We

conclude that the district court committed reversible error in admitting the testimony in the

absence of the original documents or an explanation from the State justifying their

unavailability. As a result, we reverse Defendant’s convictions and remand for a new trial.

{2} We note that Defendant’s single point on appeal is that the State established an

essential element of the charges on which Defendant was convicted solely on this

inadmissible evidence and, therefore, in its absence the convictions were not supported by

sufficient evidence. The State argues that there was sufficient evidence to support the

convictions even without the evidence Defendant attacks as being erroneously admitted. The

manner in which the parties have phrased the issues on appeal, concentrating on sufficiency

of the evidence to convict, have the tendency to lead the reader astray because the

determinative issues are whether the court’s admission of the evidence was erroneous and,

if so, whether the error was harmless and therefore not reversible error. 

BACKGROUND

{3} Hidalgo County in Southwest New Mexico, where Defendant was arrested, is a very

remote and sparsely populated area close to the Mexico-United States border. The town of

Hachita is about forty-five miles north of the Mexico-United States border port town of

Antelope Wells. To disrupt drug smuggling, United States Border Patrol Agents in Hachita

pay special attention to vehicles traveling to and from the border. The agents are familiar

with the people who live in the area and are familiar with the vehicles they drive.

{4} At trial, law enforcement witnesses testified about a common method of drug

smuggling activity by the use of vehicles to pick up drugs that have been carried across the

border on foot. When drugs enter the United States, it is not uncommon for the pickup

people to use two vehicles in the operation, driving together from a pickup area to a

distribution center. This cooperative operation is known in law enforcement as using

“tandem vehicles” and, as testified to in this case, involves one vehicle serving as a “load

vehicle” while the other functions as a decoy or “heat vehicle.” There are many different

factors that law enforcement agents consider in arriving at a suspicion of a tandem-vehicle

drug operation.

{5} On the morning of Defendant’s arrest, agents observed a red or maroon Nissan

followed by a red Mustang, traveling close together, both with Arizona license plates, and

with one occupant in each car. The cars appeared to be traveling together, they were not

familiar to the agents, and they headed south toward Antelope Wells. About two hours later,

Agent Michael Leyba observed the same two cars traveling together northbound, close to

Hachita. As Agent Leyba turned his patrol unit around, the Nissan, which was in front,

immediately sped off at a high rate of speed, while the Mustang “calmly drove ahead at . .

. normal highway speeds.” Agent Leyba radioed the circumstances to another agent and

stayed in radio contact with regard to the pursuit of the Nissan, while himself following the
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 The sufficiency of cause for the stop is not an issue in this case.

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Mustang. After following the Mustang for about fifteen minutes, Agent Leyba activated his

emergency equipment and pulled over the Mustang.1

 Upon running a radio check, Agent

Leyba learned that Defendant, who was driving the Mustang, was a resident alien with a

prior criminal charge. Agent Leyba had Defendant follow him to a nearby Border Patrol

station.

{6} Meanwhile, New Mexico State Police Officer George Lopez had spotted the Nissan

traveling over 100 miles an hour. After a pursuit and a failed attempt by Officer Daniel

Calderon to use a spike belt to stop the Nissan, Officer Lopez and Officer Calderon observed

the Nissan parked with the driver door open in front of a truck stop near Lordsburg, New

Mexico. The officers found large bundles of marijuana in the Nissan. The driver of the

Nissan was Jesus Arredondo, who was arrested after being escorted by a truck driver toward

Officer Lopez who had begun to look for the driver of the Nissan. Narcotics Agent Lisa

Diaz arrived at the location of the Nissan and questioned Arredondo. Arredondo told Agent

Diaz that the Nissan did not belong to him. In order to determine who owned the Nissan,

Agent Diaz ran a registration check through Arizona and the National Law Enforcement

System and also looked at the Arizona registration document inside the glove box in the

Nissan. Agent Diaz drove the Nissan to the Border Patrol station, and Arredondo was

apparently transported by another agent to the same location. Defendant and Arredondo

were ultimately transported from the Border Patrol station to the State Police office.

{7} While Defendant was being transported from the State Police office to jail, he noticed

the Nissan parked in front of the office and remarked that the Nissan did not belong to him.

With the assistance of the agent who transported Defendant to the office, Defendant

completed and signed a disclaimer of ownership form that requested name, social security

number, birth date, driver’s license, and address.

{8} During trial, Agent Diaz was permitted to testify, over objection, that a printout of

the registration check received from dispatch and the registration she saw in the glove box

of the Nissan indicated that Defendant was the owner of the Nissan. The agent testified that

the biographical information on Defendant’s disclaimer was the same as that included in the

printout and the same as that on the registration in the glove box. The disclaimer was

admitted into evidence, but neither the printout nor the registration documents were

introduced in evidence during trial.

DISCUSSION

{9} We first address the State’s claims that particular arguments made on appeal were

not properly preserved below. We then discuss Defendant’s arguments that Agent Diaz’s

testimony was erroneously admitted, followed by a discussion regarding the State’s

argument that, even without the challenged testimony, there was sufficient evidence to
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support Defendant’s convictions. Finally, because we reverse Defendant’s convictions, we

conduct a sufficiency-of-the-evidence analysis in order to determine whether the case should

be retried or dismissed.

Preliminary Preservation Issues

{10} Before we reach the merits of this case, we discuss two preliminary preservation

issues. The first issue is whether an objection was made in the district court by defense

counsel about the admission of testimony as to the contents of both the printout and the

registration document found in the glove box of the Nissan. The State asserts that defense

counsel only objected to Agent Diaz’s testimony regarding the registration document in the

Nissan and not the registration-check printout that she received from dispatch. We disagree.

At trial, Agent Diaz testified that she established ownership of the Nissan based on “a

registration from the State of Arizona inside the car and also a registration check through the

State of Arizona, through the National Law Enforcement system [that] was ran [sic].” When

the district court asked Agent Diaz who owned the car, defense counsel approached the

bench and objected to the admission of the evidence by stating: “I would like some

foundation on that. I haven’t seen these documents that she’s referring to.” The court

recessed for lunch after asking “We don’t have these documents?” When the trial resumed,

defense counsel approached and stated:

Well, what I would ask is maybe if on the record, so that I don’t have to

interrupt [opposing counsel] while [the agent is] testifying, I’d like some

objection with regard to the evidence on the registration and [Defendant’s]

name on the registration of the car, the Nissan and basically I’d object to the,

basically, just because, it’s double hearsay, it’s hearsay one from the

document and two from what was on the document. What she saw, you

know, so I mean, based on hearsay, it was based on the fact that we don’t

have the documents[.]

The court allowed the State to ask Agent Diaz whose name was on the registration that she

found in the glove box, and defense counsel once again objected “with regard to hearsay and

double hearsay that the documents were not disclosed.” We conclude that the issue was

preserved for appeal as to both documents since the district court had the “opportunity to

consider the merits of, or to rule intelligently on, the argument [the] defendant now puts

before us.” State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986).

{11} The second preservation issue relates to the specificity of defense counsel’s objection

as to which rule of evidence precluded the admission of the testimony about the contents of

the documents. On appeal, Defendant argues in his brief in chief that admission of the

testimony about the contents of the writings, without production of the actual documents,

violated the best-evidence rule. See Rules 11-1002, 11-1004 NMRA. In its answer brief,

the State does not object to Defendant’s best-evidence rule argument on the ground the

argument was not preserved. This Court nevertheless asked the parties to address this issue
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in oral argument. While defense counsel’s objection at trial was not as specific as it might

have been, he did point out that the testimony concerned what was on the documents and that

the documents were not disclosed or produced, and he did request foundation. We conclude

that this objection was enough to alert the district court that an objection was being made to

testimony that defense counsel believed required secondary evidence in violation of the bestevidence rule. See Frost v. Markham, 86 N.M. 261, 265, 522 P.2d 808, 812 (1974) (holding

that an objection demanding production of a document, when no showing of unavailability

of the document had been made, sufficiently informed the court that the objection was being

made as to proof of content in violation of the best-evidence rule); State v. Guthrie, 2009-

NMCA-___, ¶ 13, ___ N.M. ___, ___ P.3d ___ (No. 27,022, filed Jan. 26, 2009) (holding

that the defendant preserved a due process argument despite the fact that his “argument

could have been made more artfully”). We conclude that Defendant properly preserved his

objection to evidence based on violation of the best-evidence rule. 

Erroneous Admission of Agent Diaz’s Testimony About Ownership of the Nissan

{12} We review claimed error in the admission of evidence for abuse of discretion. State

v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995); Leigh v. Vill. of Los Lunas, 2005-

NMCA-025, ¶ 19, 137 N.M. 119, 108 P.3d 525. “An abuse of discretion occurs when the

ruling is clearly against the logic and effect of the facts and circumstances of the case.”

Woodward, 121 N.M. at 4, 908 P.2d at 234 (internal quotation marks and citation omitted).

“We cannot say the trial court abused its discretion by its ruling unless we can characterize

it as clearly untenable or not justified by reason.” Id. (internal quotation marks and citation

omitted). 

{13} While Defendant and the State extensively argue the admissibility of testimony under

the hearsay rule as to the content of documents not introduced at trial, the main and

determinative evidentiary issue in this case is not hearsay. Rather, it is the best-evidence

rule. See Rules 11-1002, 11-1004. The best-evidence rule applies when the contents of a

writing are at issue but the original document is not introduced into evidence. See Rule 11-

004; see also Sun Vineyards, Inc. v. Luna County Wine Dev. Corp., 107 N.M. 524, 528, 760

P.2d 1290, 1294 (1988) (stating that a document is the best evidence of its contents). 

{14} Pursuant to Rule 11-004, the State was required to either produce the original

writings or explain why they were unavailable. See Rule 11-1004 (providing that the

original is not required and other evidence of the contents of a writing is admissible if the

original was lost or destroyed, not obtainable, in possession of opponent, or not closely

related to a controlling issue); Palatine Ins. Co. v. Santa Fe Mercantile Co., 13 N.M. 241,

253, 82 P. 363, 364 (1905) (holding that the evidence of the contents of a printed offer of

reward for apprehension and conviction of the person who set a fire was inadmissible in the

absence of any showing as to why the original offer was not produced); Phillips v. State, 597

P.2d 456, 462 (Wyo. 1979) (holding that error was committed in allowing a witness to testify

as to the contents of a teletyped report of registration without introduction into evidence of

the message itself). Here, the documents referred to by Agent Diaz were not introduced at
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trial, and the State provided no explanation as to availability of the documents. Accordingly,

based on the best-evidence rule, the district court erred in admitting the testimony of Agent

Diaz with regard to these documents.

{15} Defendant contends that without the erroneously admitted evidence, the remaining

evidence was insufficient to convict Defendant. Defendant’s approach is to argue that the

case must be reversed because without Agent Diaz’s testimony relating to ownership there

was insufficient evidence to establish the essential elements of the crimes. We reject this

approach as a basis for reversal of Defendant’s convictions. Assuming that the evidence was

erroneously admitted, the issue for reversal is whether the admission of the evidence of

ownership was prejudicial because it likely contributed to the jury’s verdict or, instead, was

not prejudicial because it constituted harmless error. See State v. Stampley, 1999-NMSC027, ¶ 38, 127 N.M. 426, 982 P.2d 477 (placing the burden on the complaining party to

demonstrate that the erroneous admission or exclusion of evidence was prejudicial in order

to obtain a reversal of the lower court’s evidentiary ruling). Nevertheless, the State expends

most of its answer brief resources responding to Defendant’s sufficiency argument as though

this were a substantial evidence case. As we indicate later in this opinion, we discuss the

State’s position on sufficiency, but treat it in essence as a harmless error argument. We note

that nowhere in the State’s brief does the State respond to Defendant’s best-evidence rule

argument. We further note that in addressing whether the agent’s testimony was

inadmissible hearsay, the State makes a limited argument that the testimony regarding the

registration documents, if inadmissible, nevertheless “constituted harmless error because the

evidence was cumulative,” in that it “merely duplicated the evidence obtained from the

National Law Enforcement system check” along with other evidence. Although not

specifically argued in its answer brief, in oral argument the State took the position that if the

testimony about the contents of the two documents was erroneously admitted, the admission

was harmless because the remaining evidence of guilt was overwhelming.

The State’s Sufficiency-of-Evidence Response

{16} In its answer brief, the State argues that the tandem-vehicle evidence alone, without

the testimony of Agent Diaz as to the ownership of the Nissan, sufficiently established that

Defendant shared Arredondo’s intent of smuggling the marijuana for distribution and that

Defendant was in constructive possession of the drugs. The State further argues that

Defendant manifested his intent by actively participating as a scout vehicle for Arredondo,

which would support a conviction of possession under an accessory theory.

{17} To support its position, the State relies heavily on a substantial evidence case in the

Tenth Circuit, United States v. Isaac-Sigala, 448 F.3d 1206 (10th Cir. 2006), to show that

evidence of tandem-vehicle activity can be sufficient to convict. Isaac-Sigala is not

applicable because it is based entirely on whether substantial evidence supported the verdict

and not on whether evidence was erroneously admitted resulting in reversible error. Id. at

1208. Furthermore, the evidence in Isaac-Sigala clearly established that the driver of the

scout van knew the contents of the load van, the evidence had nothing to do with the
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defendant as the owner of either vehicle, and the defendant conceded his connection with

the load van. Id. at 1211, 1212. Despite the confusing approach taken by Defendant in his

brief in chief by arguing sufficiency of the evidence, the State’s approach is not useful and

does not constitute a persuasive response to whether the district court in the present case

committed reversible error. We do not fully discount the State’s argument, however,

because we construe it to assert that the error, if any, in admitting Agent Diaz’s testimony

was harmless because other evidence presented was sufficient to support findings that

Defendant was in constructive possession of the drugs as an accessory and that Defendant

conspired to possess the drugs.

{18} “For an error to be deemed harmless, there must be: (1) substantial evidence to

support the conviction without reference to the improperly admitted evidence, (2) such a

disproportionate volume of permissible evidence that, in comparison, the amount of

improper evidence will appear so minuscule that it could not have contributed to the

conviction, and (3) no substantial conflicting evidence to discredit the State’s testimony.”

State v. Duffy, 1998-NMSC-014, ¶ 38, 126 N.M. 132, 967 P.2d 807 (internal quotation

marks and citation omitted).

{19} Defendant was convicted of possession with intent to distribute marijuana (over 100

pounds) and conspiracy to distribute marijuana (over 100 pounds). To obtain a conviction

for possession of marijuana, the State had to establish beyond a reasonable doubt

that: (1) Defendant had marijuana in his possession, (2) Defendant knew it was marijuana,

(3) Defendant intended to transfer the marijuana to another, and (4) this happened in New

Mexico on or about September 30, 2004. UJI 14-3104 NMRA. Proof of possession of

illegal drugs may be established by circumstantial as well as direct evidence. State v.

Barber, 2004-NMSC-019, ¶ 27, 135 N.M. 621, 92 P.3d 633. Possession may be actual or

constructive. State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989).

{20} There were no drugs found in the Mustang that Defendant was driving. However,

as indicated by the State, the jury may have convicted him for possession under a

constructive-possession theory or accessory liability. To be convicted of constructive

possession, exercise of control over the drugs is an essential element because neither a

person’s presence in the vicinity of nor knowledge of the existence or location of the drugs

is, by itself, possession. The district court gave the jury a constructive-possession jury

instruction that states: 

A person is in possession of Marijuana when he knows it is on his

person or in his presence, and he exercises control over it. 

Even if the substance is not in his physical presence, he is in

possession if he knows where it is, and he exercises control over it. 

Two or more people can have possession of a substance at the same

time. 
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A person’s presence in the vicinity of the substance or his knowledge

of the existence or the location of the substance, is not, by itself, possession.

UJI 14-3130 NMRA.

{21} Ownership was a very important consideration at trial. The district court specifically

asked Agent Diaz, “And who was the owner of that car?” The State relied on the testimony

about ownership of the Nissan to show that Defendant had control over the marijuana.

During closing argument and precisely in the context of control over the marijuana, the

prosecutor told the jury that “[W]hat we have presented to you today is full proof that here

is a defendant before us today who is in possession in that he has exercised control . . . . The

automobile [is] in his name . . . . So, [he is] in physical control.” The prosecutor also used

the ownership evidence to argue that Defendant’s written disclaimer of ownership was not

credible. In describing the activity of Arredondo and Defendant, the prosecutor referred to

“Arredondo, driving a car, registered to [Defendant],” and then, a few moments later, in

reference to “all of the evidence in this particular case,” the prosecutor singled out “the way

it happened, . . . the methods of travel, . . . the jointness of it, Mr. Arredondo driving a car,

registered to [Defendant].” In rebuttal argument, the prosecutor referred to “that registration

document.” It is apparent, therefore, that the State relied on the testimony pertaining to the

ownership of the Nissan in order to establish control, an essential element of the crime under

a constructive-possession theory.

{22} The jury was also instructed under a theory of aiding or abetting/accessory to crime

liability and conspiracy to possess marijuana. For a possession with intent to distribute

conviction under an aiding or abetting theory, the State had to establish that: (1) Defendant

intended that the crime be committed, and (2) the crime was committed. UJI 14-2822

NMRA. “[A]n accessory must share the criminal intent of the principal[, which] can be

inferred from behavior which encourages the act or which informs the confederates that the

person approves of the crime after the crime has been committed.” State v. Carrasco, 1997-

NMSC-047, ¶ 7, 124 N.M. 64, 946 P.2d 1075 (citation omitted); State v. Brenn, 2005-

NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050 (“Intent is usually established by

circumstantial evidence.”). Our statute defines conspiracy as “knowingly combining with

another for the purpose of committing a felony.” NMSA 1978, § 30-28-2(A) (1979). To

obtain a conviction of conspiracy, the State had to establish beyond a reasonable doubt

that: (1) Defendant and another person by words or acts agreed together to commit

possession of marijuana with intent to distribute, and (2) Defendant and the other person

intended to commit possession of marijuana with intent to distribute. UJI 14-2810 NMRA.

“[C]ircumstantial evidence can be used to prove a conspiracy.” State v. Hernandez, 104

N.M. 268, 277-78, 720 P.2d 303, 312-13 (Ct. App. 1986). 

{23} In addition to the prosecutor’s arguments set out earlier in this opinion, the

prosecutor described the joint plan as “going down to the isolated area, . . . operating in

tandem, operating . . . [a] decoy car to deflect focus of the law enforcement officers on the

load car.” The prosecutor goes on to state that “it’s early in the morning before the Border
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Patrol station opens. . . . There’s two cars going down there. . . . [O]ne of the drivers,

Arredondo, driving a car, registered to this [D]efendant.” To further the joint-plan argument,

the prosecutor described how “the one car really jumps and runs when . . . Agent Leyba . .

. makes [a] U turn [to] get[] behind them,” and Defendant continues slowly in the Mustang

doing just “what he’s supposed to do,” that is distract law enforcement while the Nissan

speeds away. The prosecutor argued that the circumstances showed intent and that

Defendant helped and encouraged the commission of the crime and that Defendant conspired

with Arredondo to “work together and they by their actions . . . showed that there was an

agreement to commit this possession of marijuana with intent to distribute.” The State

claimed that Defendant manifested his intent by actively participating as a scout vehicle for

Arredondo which would support a conviction of possession under an accessory theory. On

appeal, the State also argues that the concerted action of the two drivers supports

Defendant’s conspiracy conviction.

{24} Without the testimony pertaining to the ownership of the Nissan, the only evidence

remaining was the tandem-vehicle activity testimony. However, that evidence alone in this

case paled in the face of evidence of the connection to the crime provided by the registration

document in the Nissan and the registration-check printout. See United States v. McMahon,

562 F.2d 1192, 1195-96 (10th Cir. 1977) (holding evidence of “lead car-load car” modus

operandi was insufficient to support smuggling of aliens and conspiracy convictions when

the defendant’s vehicle was in the vicinity of load vehicle, the vehicles had been on a road

that avoided the checkpoint, the vehicles were equipped with CB radios, the drivers were

brothers-in-law, and the defendant’s vehicle had turned around and was traveling south on

I-25 after the load vehicle was detained, because no incriminating contact with the smugglers

was shown and the circumstantial evidence created mere suspicion or insinuation of guilt,

which was not enough for a conviction). 

{25} We conclude that the testimony of Agent Diaz with regard to the registration

documents was erroneously admitted, and it was significant, if not compelling, evidence of

Defendant’s connection to the crime; whereas the tandem-vehicle evidence alone was barely,

if at all, sufficient to support Defendant’s convictions. Therefore, under the Duffy harmlesserror analysis, we hold that the tandem-vehicle evidence was not of such a disproportionate

volume as to render the inadmissible evidence “so minuscule that it could not have

contributed to the conviction[s].” Duffy, 1998-NMSC-014, ¶ 38 (internal quotation marks

and citation omitted). Therefore, we reject the State’s sufficiency-of-evidence and apparent

harmless-error arguments.

{26} Establishing the ownership of the Nissan was necessary in this case to support

Defendant’s convictions of possession under either a constructive-possession or an

accessory-liability theory and to establish conspiracy to possess. We hold that the admission

of the testimony of Agent Diaz with regard to the registration documents, without

submission of the supporting documents or an explanation regarding unavailability of those

documents, constituted reversible error. We reverse Defendant’s convictions for possession

with intent to distribute and conspiracy to possess with intent to distribute. 
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Retrial or Dismissal

{27} Defendant requests that we reverse his convictions and dismiss the case against him

with prejudice or, in the alternative, grant him a new trial. When determining whether a case

should result in dismissal or retrial, we must determine whether the evidence was sufficient

to support the convictions and in doing so, we consider all the evidence, including evidence

that was improperly admitted. State v. Post, 109 N.M. 177, 181, 783 P.2d 487, 491 (Ct. App.

1989). As previously discussed, ownership of the Nissan could provide a sufficient link

between Defendant and the drugs and could establish the elements necessary for Defendant’s

convictions of possession with intent to distribute and conspiracy. When evidence of

ownership of the Nissan that was improperly admitted is considered, it is apparent that there

was sufficient evidence to connect Defendant to the Nissan, in which the drugs were being

transported, and therefore sufficient evidence to support convictions for possession of

marijuana with intent to distribute and conspiracy to possess with intent to distribute. We

conclude that retrial is the appropriate remedy. 

CONCLUSION

{28} We reverse Defendant’s convictions for possession with intent to distribute and

conspiracy to possess with intent to distribute and remand for a new trial.

{29} IT IS SO ORDERED.

JONATHAN B. SUTIN, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

RODERICK T. KENNEDY, Judge

Topic Index for State v. Lopez, No. 27,078

AE APPEAL AND ERROR

AE-FE Fundamental Error

AE-PA Preservation of Issues for Appeal

CL CRIMINAL LAW

CL-CL Controlled Substances
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EV EVIDENCE

EV-AE Admissibility of Evidence

EV-DO Documentary Evidence

EV-HR Hearsay Evidence

EV-SS Substantial or Sufficient Evidence