Correction Page, BuGW #31,566 Filed 2-28-12: Page 1, lines 14-15 replace with Allison H.

Jaramillo, Assistant Appellate Defender, Santa Fe, NM.

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filing date. 

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 31,566

5 JERRY PHILLIPS,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

8 Lisa B. Riley, District Judge

9 Gary K. King, Attorney General 

10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender

13 Santa Fe, NM

14 Allison H. Jaramillo, Assistant Appellate Defender

15 Santa Fe, NM

16 for Appellant
2

1 MEMORANDUM OPINION

2 BUSTAMANTE, Judge.

3 Defendant appeals his conviction for possession of a controlled substance. In

4 our notice, we proposed to affirm his conviction. Defendant has timely responded to

5 our proposal. We have considered his arguments and, not being persuaded, affirm.

6 Defendant continues to assert that the district court erred by failing to exclude his

7 admission made at the time of his arrest. He recognizes that his statements were

8 “statements made during custodial interrogation that may be in response to police

9 questioning but are unresponsive to the questions asked.” State v. Fekete, 120 N.M.

10 290, 300, 901 P.2d 708, 718 (1995). Such statements do not require suppression. Id.

11 Without any citation to authority, Defendant, nevertheless, argues that his statements

12 required suppression. We are unconvinced that Defendant’s admission here was

13 subject to Miranda protections.

14 Defendant also continues to argue that his admission should have been excluded

15 because it was not disclosed by the State prior to trial. We proposed to affirm the

16 district court’s ruling because Defendant was not challenging the admission of the

17 report itself into evidence, but the officer’s testimony about events that were recorded

18 in the report. Defendant cites State v. Allison, 2000-NMSC-027, ¶ 6, 129 N.M. 566,

19 11 P.3d 141, as providing the test to be applied when “evidence is disclosed for the
3

1 first time during trial.” [MIO 11] We decline to apply the Allison test, because we do

2 not believe that Allison applies to the testimony of live witnesses. Defendant has still

3 identified no authority that the statement was inadmissible simply because it was also

4 contained in the report. Because Defendant identifies no valid basis on which to

5 exclude the officer’s statement regarding Defendant’s custodial admissions, we find

6 no error in the district court’s refusal to exclude the statement.

7 Defendant continues to argue that the district court erred by admitting the “drug

8 evidence” at trial, where “the chain of custody testimony was incomplete, and

9 therefore the drug lab report as to the evidence also lacked adequate foundation.” In

10 our notice, we relied on State v. Peters, 1997-NMCA-084, ¶¶ 25-27, 123 N.M. 667,

11 944 P.2d 896, for the proposition that“[i]n order to admit real or demonstrative

12 evidence, the evidence must be identified either visually or by establishing custody

13 of the object . . . .” Defendant recognizes that “[t]he admission of real or

14 demonstrative evidence does not require the State to establish the chain of custody in

15 sufficient detail to exclude all possibility of tampering.” State v. Rodriguez, 2009-

16 NMCA-090, ¶¶ 22-23, 146 N.M. 824, 215 P.3d 762. Nevertheless, he maintains, the

17 State must still lay an adequate foundation and demonstrate a proper chain of custody.

18 Although he argues that was not done here, he does not contest the facts upon

19 which we relied in our calendar notice to establish the chain of custody and the
4

1 foundation for admission of the drug evidence. Therefore, we conclude that there was

2 no error in the district court’s admission of the evidence. 

3 Finally, Defendant continues to argue that his conviction was not supported by

4 sufficient evidence. In so doing, he argues that there was testimony from the lab

5 analyst that he sometimes gets a false positive result on drug tests. [MIO 15-16] He

6 also argues that the officer’s testimony about his admission that the methamphetamine

7 was his was incorrect. [MIO 16] In light of our standard of review, neither of these

8 matters is sufficient to undermine the verdict. It is for the finder of fact to reconcile

9 conflicts in the evidence and determine where the truth lies. The fact finder can ignore

10 Defendant’s version of events. This Court reviews the evidence in the light most

11 favorable to the verdict. See State v. Barber, 2003-NMCA-053, ¶ 16, 133 N.M. 540,

12 65 P.3d 1095.

13 We conclude that the evidence was sufficient to establish that Defendant had

14 methamphetamine in his possession, knowing that it was methamphetamine.

15 For the reasons stated herein and in the notice of proposed disposition, we

16 affirm.

17 IT IS SO ORDERED.

18 

19 MICHAEL D. BUSTAMANTE, Judge
5

1 WE CONCUR:

2 

3 JAMES J. WECHSLER, Judge

4 

5 TIMOTHY L. GARCIA, Judge