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. This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 31,566 4 JERRY PHILLIPS, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Lisa B. Riley, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Santa Fe, NM 13 Allison H. Jaramillo, Assist ant Appellate Defender 14 Santa Fe, NM 15 for Appellant 162 MEMORANDUM OPINION 1 BUSTAMANTE, Judge. 2 Defendant appeals his conviction for po ssession of a controlled substance. In 3 our notice, we proposed to affirm his c onviction. Defendant has timely responded to 4 our proposal. We have considered his argum ents and, not being persuaded, affirm. 5 Defendant continues to assert that the district court erred by failing to exclude his 6 admission made at the time of his arrest. He recognizes that his statements were 7 “statements made during custodial interrogation that may be in response to police 8 questioning but are unresponsive to the questions asked.” State v. Fekete , 120 N.M. 9 290, 300, 901 P.2d 708, 718 (1995). Such stat ements do not require suppression. Id. 10 Without any citation to authority, Defendant , nevertheless, argues that his statements 11 required suppression. We are unconvincedthat Defendant’s admission here was 12 subject to Mirandaprotections. 13 Defendant also continues to argue that his admission should have been excluded 14 because it was not disclosed by the State prio r to trial. We proposed to affirm the 15 district court’s ruling because Defendant was not challenging the admission of the 16 report itself into evidence, but the officer’s testimony about events that were recorded 17 in the report. Defendant cites State v. Allison , 2000-NMSC-027, ¶ 6, 129 N.M. 566, 18 11 P.3d 141, as providing the test to be app lied when “evidence is disclosed for the 193 first time during trial.” [MIO 11] We decline to apply the Allison test, because we do 1 not believe that Allison applies to the testimony of live witnesses. Defendant has still 2 identified no authority that the statement was inadmissible simply because it was also 3 contained in the report. Because Defendant identifies no valid basis on which to 4 exclude the officer’s statement regarding Defendant’s custodial admissions, we find 5 no error in the district court’s refusal to exclude the statement. 6 Defendant continues to argue that the di strict court erred by admitting the “drug 7 evidence” at trial, where “the chain of custody testimony was incomplete, and 8 therefore the drug lab report as to the evid ence also lacked adequate foundation.” In 9 our notice, we relied on State v. Peters , 1997-NMCA-084, ¶¶ 25-27, 123 N.M. 667, 10 944 P.2d 896, for the proposition that“[i]n order to admit real or demonstrative 11 evidence, the evidence must be identified either visually or by establishing custody 12 of the object . . . .” Defendant rec ognizes that “[t]he admission of real or 13 demonstrative evidence does not require the State to establish the chain of custody in 14 sufficient detail to exclude all possibility of tampering.” State v. Rodriguez , 2009- 15 NMCA-090, ¶¶ 22-23, 146 N.M. 824, 215 P.3d 762. Neverthele ss, he maintains, the 16 State must still lay an adequate foundation and demonstrate a proper chain of custody. 17 Although he argues that was not done here, he does not contest the facts upon 18 which we relied in our calendar notice to establish the chain of custody and the 194 foundation for admission of the drug evidence. Therefore, we conclude that there was 1 no error in the district court’s admission of the evidence. 2 Finally, Defendant continues to argue that his conviction was not supported by 3 sufficient evidence. In so doing, he ar gues that there was testimony from the lab 4 analyst that he sometimes gets a false positive result on drug tests. [MIO 15-16] He 5 also argues that the officer’s testimony about his admission that the methamphetamine 6 was his was incorrect. [MIO 16] In light of our standard of review, neither of these 7 matters is sufficient to undermine the verdict. It is for the finder of fact to reconcile 8 conflicts in the evidence and determine where the truth lies. The fact finder can ignore 9 Defendant’s version of events. This Court reviews the evidence in the light most 10 favorable to the verdict. See State v. Barber , 2003-NMCA-053, ¶ 16, 133 N.M. 540, 11 65 P.3d 1095. 12 We conclude that the evidence was suffi cient to establish that Defendant had 13 methamphetamine in his possession, knowing that it was methamphetamine. 14 For the reasons stated herein and inthe notice of proposed disposition, we 15 affirm. 16 IT IS SO ORDERED. 17

18 MICHAEL D. BUSTAMANTE, Judge 195 WE CONCUR: 1

2 JAMES J. WECHSLER, Judge 3

4 TIMOTHY L. GARCIA, Judge 5