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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40833

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ZANE FERNANDEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Lisa B. Riley, District Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Tania Shahani, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

IVES, Judge.

{1} Defendant appeals his convictions for possession of a controlled substance. We 

previously issued a notice of proposed summary disposition in which we proposed to 

affirm. Defendant has filed a memorandum in opposition. After due consideration, we 

affirm.

{2} The relevant background information and legal principles have previously been 

set forth. We will avoid undue reiteration here, and focus instead on the content of the 

memorandum in opposition.
{3} Defendant continues to challenge the sufficiency of the evidence. [MIO 3-8] 

However, as briefly described in the notice of proposed summary disposition, [CN 2-4] 

the testimony of Officer Stinson that he sent two substances found on Defendant’s 

person to the State Crime Lab for testing, together with the testimony of the lab 

technician who performed the testing confirming that the substances were morphine 

and methamphetamine, was sufficient to support the convictions. See, e.g., State v. 

Tidey, 2018-NMCA-014, ¶ 26, 409 P.3d 1019 (holding that a police officer’s testimony 

that a white powdery substance later identified as methamphetamine was seized from 

the defendant’s person in the course of a search incident to arrest was sufficient to 

support a conviction for possession of a controlled substance); State v. McAdams, 

1972-NMCA-029, ¶¶ 4-5, 10, 83 N.M. 544, 494 P.2d 622 (holding that an officer’s 

recovery of pills from the defendant’s person in the course of a search incident to arrest, 

together with subsequent testing, which established that the pills contained LSD, 

supplied sufficient evidence to support a conviction for possession of a controlled 

substance).

{4} In the memorandum in opposition Defendant continues to argue that Officer 

Stinson’s failure to describe in detail either the seizure of the drugs from Defendant’s 

person or the process by which he sent the substances to the crime lab for testing 

should be said to render the evidence insubstantial. [MIO 4-8] These matters, which 

appear to pertain to the chain of custody, were for the jury to evaluate; they do not 

supply a basis for second-guessing the jury’s ultimate assessment of the sufficiency of 

the evidence on appeal. See generally State v. Cabezuela, 2015-NMSC-016, ¶ 23, 350 

P.3d 1145 (“We will not invade the jury’s province as fact-finder by . . . reweighing the 

evidence, or substituting our judgment for that of the jury.” (alterations, internal 

quotation marks, and citation omitted)); State v. Peters, 1997-NMCA-084, ¶ 26, 123 

N.M. 667, 944 P.2d 896 (explaining that questions concerning a possible gap in the 

chain of custody affect the weight of the evidence); State v. Mireles, 1995-NMCA-026, ¶ 

8, 119 N.M. 595, 893 P.2d 491 (“We do not weigh the evidence or substitute our 

judgment for that of the jury.”).

{5} Finally, Defendant advances a series of arguments, which appear to have no 

bearing upon the ultimate issue in this case. He suggests that neither lay opinion nor 

circumstantial evidence should be said to support the conviction. [MIO 5-6] However, 

the identities of the controlled substances were established in the course of the 

testimony of the crime lab technician who performed testing, not through lay opinion or 

circumstantial evidence. [DS 3] Defendant also suggests that Officer Stinson failed to 

“authenticate” evidence, [MIO 6] and suggests that some sort of real evidence should 

have been excluded due to gaps in the chain of custody. [MIO 7] However, he advances 

no challenge to the admissibility of any of the evidence on appeal, and he fails to 

explain how these matters support his challenge to the sufficiency of the evidence. See 

generally Jacobs v. Meister, 1989-NMCA-033, ¶ 56, 108 N.M. 488, 775 P.2d 254 

(Hartz, J., specially concurring) (“Of course, there is a distinction between the 

admissibility of evidence and its sufficiency.”). Cf. State v. Miera, 2018-NMCA-020, ¶ 47, 

413 P.3d 491 (“When considering whether sufficient evidence exists to support retrial, 
we consider all evidence—even that which was wrongfully admitted.”). We therefore 

remain unpersuaded that Defendant has identified any basis for relief on appeal. 

{6} Accordingly, for the reasons stated in our notice of proposed disposition and 

herein, we affirm.

{7} IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

JENNIFER L. ATTREP, Chief Judge

JACQUELINE R. MEDINA, Judge