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Certiorari Granted, No. 31,733, June 23, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-061

Filing Date: May 14, 2009 

Docket No. 27,192

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

PABLO DELGADO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Silvia Cano-Garcia, District Judge

Gary K. King, Attorney General

Ann M. Harvey, Assistant Attorney General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant Pablo Delgado appeals his convictions of possession of cocaine and

tampering with evidence. With regard to the possession charge, a forensic chemist from the

New Mexico Department of Public Safety Crime Lab (Crime Lab) testified concerning the

analyses of another chemist from the Crime Lab based on the reports of his test results. The

district court received one of the reports in evidence as a business record. We conclude that
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the report was properly received as a business record and that the chemist’s testimony did

not violate Defendant’s right of confrontation. We further conclude that there was sufficient

evidence to convict Defendant of both charges. We therefore affirm. 

BACKGROUND

{2} In their bike patrol on June 18, 2004, at approximately 10:00 p.m., Officers Irma

Palos and Wavie Brown of the Las Cruces Police Department observed Defendant in the

vicinity of mobile homes. He was bent down behind a wooden fence. Officer Palos called

out to Defendant. Defendant stood up, looked at the officers, and walked quickly away from

them toward a nearby storage shed. Officer Palos called out to Defendant to stop. She lost

sight of Defendant for “a quick moment” as Defendant walked toward the shed. Defendant

then turned around and started walking back to the officers.

{3} When Officer Palos asked Defendant what he was doing, Defendant responded that

he was “drinking a beer and talking to his wife on the phone.” Officer Palos testified,

however, that the beer can that Defendant was holding was not open, and there was no one

on Defendant’s cell phone. Officer Palos asked Defendant what he had thrown because,

based on his body movements, she believed that he had disposed of something. Defendant

repeated that he was drinking a beer and talking with his wife on the phone. Officer Cindy

McCants, who had arrived at the scene, found a baggie with a white powdery substance in

front of the shed. Officer McCants gave the baggie to Officer Brown, who showed it to

Officer Palos. At that point, without provocation, Defendant put his hands behind his back

and turned around. He asked if he could make a phone call. The officers then detained him.

A field test of the substance indicated that it was cocaine.

CHEMIST’S REPORT

{4} At trial, Danielle Elenbaas, a forensic chemist at the Crime Lab, testified that the

Crime Lab is accredited by an accrediting body that inspects the lab every five years to

ensure that it uses current procedures, validated methods, and good science. She stated that

Eric Young, another forensic chemist at the Crime Lab, tested the substance and prepared

a report of his analysis. Ms. Elenbaas testified as the records custodian of Mr. Young’s

report. She identified the report and described the routine process by which it was created.

She stated that only she and Mr. Young were authorized to generate such reports on

controlled substances. She further stated that the reports record the results of the tests the

chemists performed and that, after the chemists approve the reports, they provide them to the

submitting agency.

{5} The State moved for the admission of Mr. Young’s report as a business record. The

district court received the report in evidence over Defendant’s objection. Ms. Elenbaas

testified that the report showed that Mr. Young identified the substance as 1.53 grams of

cocaine.
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{6} On appeal, Defendant argues that the district court erred in receiving the Crime Lab

report in evidence. “We review the admission of evidence under an exception to the hearsay

rule with deference to the trial court’s discretion; we review to determine whether there has

been an abuse of discretion.” State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459,

64 P.3d 486, aff’d, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234. We will not conclude

that the district court “abused its discretion by its ruling unless we can characterize it as

clearly untenable or not justified by reason.” State v. Mora, 2003-NMCA-072, ¶ 8, 133

N.M. 746, 69 P.3d 256 (internal quotation marks and citation omitted).

{7} The district court admitted Mr. Young’s laboratory report into evidence under the

business records exception to the hearsay rule. See Rule 11-803(F) NMRA. Under the

business records exception to the hearsay rule, the following documents are admissible:

A memorandum, report, record or data compilation, in any form, of acts,

events, conditions, opinions or diagnoses, made at or near the time by, or

from information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the regular

practice of that business activity to make the memorandum, report, record or

data compilation, all as shown by the testimony of the custodian or other

qualified witness[.]

Id. The rule further provides that the exception is not to be applied if the “source of

information or the method or circumstances of preparation indicate lack of trustworthiness.”

Id. Although the district court expressly received Mr. Young’s laboratory report in evidence

under the business records exception to the hearsay rule, Defendant primarily focuses his

argument on appeal on the public records exception to the hearsay rule, claiming that the two

exceptions are analogous. The public records exception to the hearsay rule permits the

admission of “[r]ecords, reports, statements or data compilations, in any form, of public

offices or agencies” that set forth “the activities of the office or agency” or “matters observed

pursuant to duty imposed by law as to which matters there was a duty to report, excluding,

however, in criminal cases matters observed by police officers and other law enforcement

personnel.” Rule 11-803(H)(1)-(2).

{8} In State v. Christian, 119 N.M. 776, 778, 895 P.2d 676, 678 (Ct. App. 1995), limited

on other grounds by State v. Ruiz, 120 N.M. 534, 537, 903 P.2d 845, 848 (Ct. App. 1995),

this Court considered the admissibility of a blood alcohol report created by an employee of

the Scientific Laboratory Division of the New Mexico Department of Health (SLD) under

both the business records and public records exceptions to the hearsay rule. First, we

concluded that the report was properly admitted into evidence under the business records

exception. Id. at 780-81, 895 P.2d at 680-81. We reasoned that, even though the report in

question was made in the furtherance of the prosecution of the defendant, the testimony

given at the trial indicated that the report was nonetheless made no “differently from any of

the thousands of other reports similarly situated.” Id. at 780, 895 P.2d at 680. Second, we

rejected the defendant’s argument that the admission of the report was improper under the
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public records exception. Id. at 782, 895 P.2d at 682. We explained that the defendant’s

argument that the preparer of the report was “law enforcement personnel” for the purposes

of Rule 11-803(H)(2) failed because the laboratory in which the report was created was “not

an arm of law enforcement.” Christian, 119 N.M. at 781, 895 P.2d at 681. We further noted

that “even documents prepared by the state police crime laboratory can satisfy the public

records exception where an adequate foundation for reliability is laid.” Id.

{9} We read Christian to be controlling in this case. Defendant offers no argument

against the admission of the report as a business record based on the plain language of Rule

11-803(F), and our review of the trial transcript reveals that, as in Christian, a sufficient

foundation for that exception was laid and that nothing elicited at trial indicated that Mr.

Young’s laboratory report was not trustworthy. See Christian, 119 N.M. at 780-81, 895 P.2d

at 680-81.

{10} Notwithstanding the admissibility of the laboratory report as a business record,

Defendant argues that Mr. Young’s laboratory report is inadmissible because Rule 11-

803(H) does not permit the reports of law enforcement personnel to be admitted as public

records. The crux of his argument is that the district court’s admission of the report was

reversible error because it “allow[ed] the State to prove its case through a report generated

by a police agency during the investigation under the guise of an ordinary business record.”

We do not agree for two reasons. 

{11} First, even if we were to accept Defendant’s assertion that the Crime Lab is a “police

agency,” Christian states that “even documents prepared by the state police crime laboratory

can satisfy the public records exception where an adequate foundation for reliability is laid.”

119 N.M. at 781, 895 P.2d at 681. In reaching this conclusion, we explained the distinction

drawn by some courts between “reports of police investigations which contain the kind of

adversarial and subjective commentary often found in such documents” and documents

“recording routine, objective observations, made as part of the everyday function of the

preparing official or agency.” Id. at 782, 895 P.2d at 682 (internal quotation marks and

citation omitted). We adopted the reasoning allowing such routine, objective reports as

evidence even though prepared by personnel associated with law enforcement. Id.

Defendant offers no compelling argument that Mr. Young’s laboratory report was not

routinely or objectively prepared or that it was in any way unreliable. See State v. Dedman,

2004-NMSC-037, ¶ 44, 136 N.M. 561, 102 P.3d 628 (finding that the state met its burden

of showing trustworthiness when there was no evidence that a blood alcohol report was

prepared atypically). 

{12} Second, in Christian, we also pointed out the consistency of the reasoning allowing

as evidence such reports of routine, objective observations with existing New Mexico case

law. This Court particularly noted our Supreme Court’s observation in State v. Linam, 93

N.M. 307, 308, 600 P.2d 253, 254 (1979), that the purpose of excluding the reports of law

enforcement personnel from admissibility under Rule 11-803(H) is to ensure that officers

who engage in investigative and prosecutorial activities testify. See Christian, 119 N.M. at
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782, 895 P.2d at 682. Defendant argues in this regard that Mr. Young’s report falls within

this category because the Crime Lab prepares such reports of controlled substances “to help

law enforcement agencies investigate and prosecute cases.” However, although Mr.

Young’s laboratory report was a part of the State’s case, Mr. Young did not engage in

investigative or prosecutorial activities. As Ms. Elenbaas testified, Mr. Young’s

responsibility as a forensic chemist at the Crime Lab with regard to the evidence in this case

was to conduct an analysis and prepare a report following protocols that are reviewed by the

Crime Lab’s accrediting body. See Dedman, 2004-NMSC-037, ¶ 30 (holding that a process

under which a report is prepared that is “routine, non-adversarial, and made to ensure an

accurate measurement” indicated that the report was not investigative or prosecutorial). The

district court did not abuse its discretion in admitting Mr. Young’s laboratory report into

evidence.

RIGHT OF CONFRONTATION

{13} Defendant additionally argues that the testimony of Ms. Elenbaas violated his rights

under the United States and New Mexico constitutions to confront Mr. Young, who had

conducted the drug analysis and prepared the report. Under Crawford v. Washington, 541

U.S. 36, 53-54, 68 (2004), the state may not introduce a testimonial statement against a

criminal defendant at trial unless it establishes that the declarant is unavailable to testify at

trial and that the defendant had the prior opportunity for cross-examination. Because the

State in our case does not assert that it met these prerequisites of Crawford, the issue before

us is solely whether Mr. Young’s laboratory report was testimonial evidence. 

{14} The Supreme Court expressly did not “spell out a comprehensive definition” of

“testimonial” in Crawford, but it did indicate that the term did apply to “prior testimony at

a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”

Id. at 68; see Davis v. Washington, 547 U.S. 813, 817, 822 (2006) (considering a 911 call

and statements made at a crime scene and holding that “[s]tatements are non-testimonial

when made in the course of police interrogation under circumstances objectively indicating

that the primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency”). As our Supreme Court pointed out in Dedman, the Supreme Court’s

“historical analysis indicates that the core concern is government officers who are

prosecuting or investigating a crime, or interrogating or at least questioning a witness,” and

a Supreme Court footnote described “[i]nvolvement of government officers in the production

of testimony with an eye toward trial” because of the “unique potential for prosecutorial

abuse.” Dedman, 2004-NMSC-037, ¶ 29 (alteration in original) (internal quotation marks

and citation omitted). 

{15} In Dedman, our Supreme Court addressed the issue of testimonial evidence with

regard to a blood alcohol report generated by SLD. Id. ¶¶ 4, 30. It held that the SLD report

was not testimonial for several reasons: (1) SLD personnel are not law enforcement, and the

report was not investigative or prosecutorial; (2) even though SLD prepared the report for

trial, the process was “routine, non-adversarial, and made to ensure an accurate
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measurement”; (3) the government officer preparing the report was not preparing testimony

for trial; and (4) a blood alcohol report “is very different from” the examples of testimonial

evidence described in Crawford—“prior testimony at a preliminary hearing, before a grand

jury, or at a former trial” and statements taken during “police interrogations.” Id. ¶ 30

(internal quotation marks and citation omitted).

{16} Defendant relies upon the difference between the Crime Lab and SLD to distinguish

Dedman from this case. But the fact that Crime Lab chemists are employed by the

Department of Public Safety as opposed to the Department of Health is not dispositive as it

is only one factor that we must consider. Moreover, we do not ascribe it the significance that

Defendant urges. 

{17} Even though the Crime Lab chemists are employed by the Department of Public

Safety, they do not perform the duties of law enforcement officers. See NMSA 1978, § 41-

4-3(D) (2007) (describing the principal duties of a “law enforcement officer” under the Tort

Claims Act as “to hold in custody any person accused of a criminal offense, to maintain

public order or to make arrests for crimes” (internal quotation marks omitted)). The Crime

Lab chemists are not charged with the responsibility of investigating or prosecuting crime.

They are under the inspection of an accrediting body, and they use standard operating

procedures with validated methods and “good science” to analyze substances submitted to

them and prepare their reports. Although chemists testify at trial and can reasonably expect

that their reports will be used if there is a trial, their testimony and reports are significantly

different from the testimonial evidence identified in Crawford as representing a

confrontation problem. They are performing the responsibilities of their jobs, and their

testing merely provides proof, or the absence of proof, of an element in a controlled

substance case.

{18} We therefore conclude, based on our analysis of the factors expressed in Dedman,

that Mr. Young’s report was not testimonial evidence under Crawford. Following Dedman,

we must then analyze the evidence as non-testimonial hearsay under Ohio v. Roberts, 448

U.S. 56 (1980), abrogated on other grounds by Crawford, 541 U.S. 36, to determine whether

Defendant’s confrontation rights were violated because he did not have the opportunity to

cross-examine Mr. Young. See Dedman, 2004-NMSC-037, ¶¶ 32-34. There is no

constitutional violation if the evidence has demonstrated reliability. See id. ¶ 37. Further,

when evidence “falls within a firmly rooted hearsay exception,” nothing else need be shown

to establish reliability. Roberts, 448 U.S. at 66; Dedman, 2004-NMSC-037, ¶ 37. Mr.

Young’s report was admissible hearsay either as a business record or a public record. Both

are firmly rooted exceptions to the hearsay rule. Roberts, 448 U.S. at 66 n.8; Dedman, 2004-

NMSC-037, ¶ 37. There was no confrontation violation in this case.

SUFFICIENCY OF THE EVIDENCE

{19} Defendant further contends that the evidence was not sufficient to convict him of

either possession of cocaine or tampering with evidence. We conduct our review for the
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sufficiency of the evidence by viewing the evidence in the most permissible way that is

favorable to the state. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We

resolve all conflicts in the evidence and indulge all permissible inferences from the evidence

in favor of the verdict. Id. We ascertain whether there was substantial evidence to enable

any rational factfinder to find that the state established each element of the crime beyond a

reasonable doubt. Id.; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). The

evidence may be direct or circumstantial. Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

Possession of Cocaine

{20} The district court instructed the jury that, to convict Defendant of possession of

cocaine, the jury was required to find that Defendant, on June 18, 2004, had cocaine in his

possession and that he knew or believed it to be cocaine or some other drug or substance the

possession of which is regulated or prohibited by law. See NMSA 1978, § 30-31-23(A)

(2005). Because constructive possession constitutes possession, see State v. Brietag, 108

N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989), the district court instructed the jury,

without objection:

A person is in possession of cocaine 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.

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.

See UJI 14-3130 NMRA.

{21} There is sufficient evidence that Defendant had constructive possession of the

cocaine that Officer McCants found in front of the shed on June 18, 2004. When the officers

approached, Defendant was bent down behind a fence. He stood up, looked at the officers,

and walked away from them at a quick pace toward the shed. He did not stop when Officer

Palos called out to him. The officers lost sight of him for a moment before he walked back

to the officers. Defendant then gave the officers an explanation about drinking a beer and

talking on his cell phone that did not fit with the officers’ observations. When the cocaine

was found, he placed his hands behind his back and turned around without any request by

the officers.

{22} The fact that Defendant did not speak English and Officer Palos may have called out

to him in English is inconsequential. Even if Defendant did not understand the command,
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the officers observed him stand up, look at them, and quickly walk toward the shed, where

the cocaine was found. We are similarly unconvinced by Defendant’s argument that he did

not have exclusive control over the area and that there were others who lived in the area,

including some present within ten to fifteen feet of the shed. This evidence was before the

jury, and the jury nevertheless viewed the evidence differently from Defendant. See Sutphin,

107 N.M. at 131, 753 P.2d at 1319 (stating that we do not reweigh the evidence, “so long as

there is sufficient evidence to support the verdict”). Based on all of the circumstances, there

was substantial evidence to support Defendant’s conviction for possession of cocaine. See

State v. Smith, 100 N.M. 352, 354, 670 P.2d 963, 965 (Ct. App. 1983) (stating that

knowledge can be inferred from circumstantial evidence), abrogated on other grounds by

State v. Watkins, 2008-NMCA-060, 144 N.M. 66, 183 P.3d 951.

Tampering with Evidence

{23} “Tampering with evidence consists of destroying, changing, hiding, placing or

fabricating any physical evidence with intent to prevent the apprehension, prosecution or

conviction of any person or to throw suspicion of the commission of a crime upon another.”

NMSA 1978, § 30-22-5(A) (2003). The district court instructed the jury that, to find

Defendant guilty of tampering with evidence, the State needed to prove beyond a reasonable

doubt that on June 18, 2004, Defendant hid or placed cocaine, intending to prevent his

apprehension, prosecution, or conviction.

{24} There is sufficient evidence to support the tampering with evidence conviction. After

Defendant walked away from the officers, Officer Palos observed his body movements that

to her appeared as if he had disposed of something. When she asked him what he had

thrown, Defendant responded that he was drinking a beer and talking on the cell phone; a

response that did not comport with Officer Palos’ observations. The cocaine was located in

the area where Defendant had been. Defendant then placed his hands behind his back and

turned around. The jury could reasonably conclude that Officer Palos observed Defendant

discard the later-located cocaine.

{25} Defendant’s reference to our Supreme Court’s statement in State v. Duran, 2006-

NMSC-035, ¶ 13, 140 N.M. 94, 140 P.3d 515, misses the mark. In Duran, the Court stated

that “[w]hile New Mexico has no case law indicating that a tampering with evidence charge

cannot be based solely on circumstantial evidence, our cases upholding convictions for this

charge involve some kind of direct evidence of tampering.” Id. The evidence that was the

subject of the tampering charge was never found. Id. ¶ 15. In contrast, in this case, not only

was the evidence found, but the officers testified to Defendant’s actions linking him to his

disposing of the evidence. 

CONCLUSION

{26} We affirm Defendant’s convictions for possession of cocaine and tampering with

evidence.
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{27} IT IS SO ORDERED.

____________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

___________________________________

CYNTHIA A. FRY, Chief Judge

___________________________________

CELIA FOY CASTILLO, Judge 

Topic Index for State v. Delgado, No. 27,192

CL CRIMINAL LAW

CL-PS Possession

CL-TE Tampering with Evidence

CA CRIMINAL PROCEDURE

CA-RT Right to Confrontation

CA-SE Substantial or Sufficient Evidence

EV EVIDENCE

EV-AE Admissibility of Evidence

EV-HR Hearsay Evidence

EV-SC Scientific Evidence & Daubert Standard

EV-SS Substantial or Sufficient Evidence

EV-TM Tampering with Evidence