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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-39626

STATE OF NEW MEXICO,

Plaintiff-Appellee, 

v.

GINGER WILLS,

Defendant-Appellant.

APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY

Felicia Blea-Rivera, Metropolitan Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BACA, Judge. 

{1} Ginger Wills (Defendant) was convicted at a bench trial in the metropolitan court 

of driving while under the influence of intoxicating liquor/drugs (DWI), first offense, 

contrary to NMSA 1978, Section 66-8-102(B) (2016); and driving on roadways laned for 

traffic, contrary to NMSA 1978, Section 66-7-317 (1978). Defendant appeals her 

convictions to this Court, arguing that (1) admission of the results of an analysis of her 

blood performed by the Scientific Laboratory Division (SLD) violated the Confrontation 
Clause of the Sixth Amendment of the United States Constitution; (2) the trial court 

erred in allowing the State to amend the charge from a DWI-alcohol theory to a DWIdrug theory; (3) there was insufficient evidence to convict Defendant of DWI; and (4) the 

remote bench trial violated her right to an in-person trial. Unpersuaded, we affirm. 

BACKGROUND

{2} Because this is a memorandum opinion and the parties are familiar with the facts 

and procedural history of the case, we omit a background section but we reserve 

discussion of facts relevant to Defendant’s appeal where appropriate in our analysis.

DISCUSSION

I. Admission of the State’s Expert Testimony, Opinion, and Toxicology 

Report

{3} Defendant argues that her right to confrontation was violated when the

metropolitan court admitted the toxicology report through the testimony of the State’s 

expert, Ms. Protiti Sarker, who “did not personally handle [Defendant’s] blood sample or 

conduct the [gas chromatograph mass spectrometer (GCMS)] testing.” The State 

responds that the “Confrontation Clause was not implicated and therefore not violated” 

because the blood test results testified to by Ms. Sarker did not “relay[] out-of-court 

testimonial hearsay to the fact[-]finder.” Additionally, the State argues on appeal that a 

technical Confrontation Clause challenge was not properly preserved. Thus, to reach 

the Confrontation Clause issue, we consider whether this issue was preserved for our 

review and, as we explain, conclude that it was properly preserved. 

A. Preservation 

{4} The State argues that Defendant failed to preserve the particular Confrontation 

Clause argument on whether State v. Huettl, 2013-NMCA-038, 305 P.3d 956, applies to 

GCMS testing.

{5} First, we point out that Rule 12-321(A) NMRA states that “[t]o preserve an issue 

for review, it must appear that a ruling or decision by the trial court was fairly invoked.” 

See State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (stating that “[i]n order to 

preserve an issue for appeal, a defendant must make a timely objection that specifically 

apprises the trial court of the nature of the claimed error and invokes an intelligent ruling 

thereon.” (internal quotation marks and citation omitted)) 

{6} Defendant objected to the admission of the toxicology report on Confrontation 

Clause grounds and argued that “this evidence . . . is testimonial and subject to the 

Confrontation Clause.” Furthermore, there was briefing on the issue of confrontation 

and the metropolitan court formally ruled on the issue. Thus, Defendant invoked a ruling 

from the trial court on the Confrontation Clause as it relates to the admissibility of 

Defendant’s blood test results. See State v. Lopez, 2000-NMSC-003, ¶ 11, 128 N.M. 
410, 993 P.2d 727 (holding that objection on the grounds of “inability to cross[-]examine 

or confront the witness” was adequate to raise Confrontation Clause claims even 

though the defendant did not mention the Sixth Amendment); see also State v. 

Moncayo, 2012-NMCA-066, ¶ 6, 284 P.3d 423 (holding that the district court was 

properly alerted to the defendant’s argument because “both the [s]tate and [the 

d]efendant engaged in arguments regarding the consequences of admitting the report 

under the Confrontation Clause”). 

{7} Therefore, Defendant’s Confrontation Clause argument is preserved for our 

review. 

B. Admission of the Toxicology Report and the State’s Expert’s Testimony 

and Opinion Concerning the Results of Defendant’s Blood Test Do Not 

Violate Defendant’s Right to Confrontation

{8} The Confrontation Clause of both the United States and New Mexico 

constitutions provide that “[i]n all criminal prosecutions, the accused shall enjoy the right 

. . . to be confronted with the witnesses against him.” U.S. Const. amends. VI; N.M. 

Const. art. II, § 14 (same). The Confrontation Clause applies to witnesses against the 

accused who provide testimony to establish or prove some fact. See State v. Tollardo, 

2012-NMSC-008, ¶ 15, 275 P.3d 110. Claimed violations of the right to confrontation 

are reviewed de novo. Id. 

{9} A defendant’s right to confrontation is violated when an out-of-court statement 

that is testimonial is introduced against the accused at trial “‘unless the witness who 

made the statement is unavailable, and the accused has had a prior opportunity to 

confront that witness.’” State v. Dorais, 2016-NMCA-049, ¶ 26, 370 P.3d 771 (quoting 

Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011)). 

{10} Regarding expert witness testimony, this Court has held that the Confrontation 

Clause is not offended when “an expert who has analyzed the raw data generated by 

another analyst and who has formed independent conclusions based upon that analysis 

. . . testif[ies] as to those conclusions.” Huettl, 2013-NMCA-038, ¶ 36; see State v. 

Navarette, 2013-NMSC-003, ¶ 22, 294 P.3d 435 (“[A]n expert witness may express an 

independent opinion regarding his or her interpretation of raw data without offending the 

Confrontation Clause.”). Expert testimony violates the Confrontation Clause when the 

opinion of the testifying expert “is based solely upon a non-testifying analyst’s analysis 

and conclusions.” Huettl, 2013-NMCA-038, ¶ 37. In those instances, “the expert will 

have failed to form an independent opinion and is merely acting as a conduit for the 

presentation of a non-testifying witness’s testimonial hearsay.” Id. ¶¶ 37-38.

{11} Preliminarily, Defendant invites this Court to reconsider our Confrontation Clause 

analysis based on the complexity of GCMS testing. Defendant argues that, because 

GCMS testing is complex, the data cannot be considered “raw,” therefore, Huettl cannot 

control the instant case. We see no reason to make admission of blood or other testing 

dependent on the complexity of the testing method employed. In reaching this 
conclusion, we observe that Defendant has not referred us to any authority or any 

jurisdiction which supports this proposition and which has implemented such a 

requirement. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 

(“[A]ppellate courts will not consider an issue if no authority is cited in support of the 

issue and that, given no cited authority, we assume no such authority exists.”).

{12} Next, we turn to the admission of the testimony of the State’s expert witness and 

toxicology report in this case. Our review of the record reveals that the State’s expert, 

Ms. Sarker, reviewed the raw data, reached her own independent opinion and 

conclusions concerning the blood test results of Defendant’s blood, and prepared and 

signed the toxicology report issued by SLD, which was admitted as State’s Exhibit 4 at 

Defendant’s trial. See Huettl, 2013-NMCA-038, ¶¶ 35-37. Consequently, we hold that 

the admission of Ms. Sarker’s testimony concerning the results of Defendant’s blood 

test was not error. We, likewise, hold that the admission of the toxicology report 

containing the results of Defendant’s blood test was not error. We begin with Huettl.

{13} In Huettl, “no inculpating report of the testing process or conclusions of nontestifying analyst were offered or admitted into evidence.” Id. ¶ 29. The defendant in 

Huettl argued that the State’s failure to call the analyst who placed the seized substance 

in the spectrophotometer machine for testing violated his right to confrontation. Id. ¶ 1. 

However, the data from the missing analyst was not independently offered or admitted 

into evidence and “even had it been admitted, there would be no confrontation concern 

because the spectrophotometer-generated graph was not a testimonial statement that 

would give rise to a confrontation right.” Id. ¶ 26. Furthermore, because the State “did 

not seek to admit, any formal statements or declarations as to [the analyst’s] testing 

process or as to her conclusions” the Confrontation Clause was not implicated. See id.

¶ 28. Most importantly, for our purposes here, this Court held in Huettl that the 

Confrontation Clause is not offended when “an expert who has analyzed the raw data 

generated by another analyst and who has formed independent conclusions based 

upon that analysis . . . testif[ies] as to those conclusions.” Id. ¶ 36

{14} Such is the case here. The State did not call the analyst who tested the blood.

Instead, the State called Ms. Sarker, an expert witness who was the staff manager of 

the SLD toxicology bureau, confirmation section. Ms. Sarker testified that, while she did 

not handle the blood in the laboratory, she reviewed the raw data generated by the 

GCMS and came to an independent opinion about the results. Ms. Sarker further 

testified that there are two components to her review, a technical and administrative 

review. There are multiple steps where quality control occurs, including accuracyensuring control samples to test the machine’s performance. Following the technical 

and administrative review to verify compliance with quality control and assurance 

requirements, as well as her review of the raw data, and the formation of her 

independent conclusions of the results of the blood test, she prepared and signed the 

SLD report containing the results of the testing to which Defendant’s blood was 

subjected. 
{15} Consequently, we conclude that Ms. Sarker’s testimony did not merely parrot the 

conclusions from a non-testifying analyst and the SLD toxicology report but provided her 

own conclusions based on her review of the underlying raw data produced by the 

GCMS. See id. ¶¶ 35-37 (observing that expert testimony based on raw data generated 

by another is permissible so long as the expert testifies to their own independently 

derived opinion). Similarly, we cannot conclude that Ms. Sarker was a substitute or 

surrogate witness because of the independent conclusions she reached and to which 

she testified. See State v. Gonzales, 2012-NMCA-034, ¶ 12, 274 P.3d 151 (stating that 

Bullcoming concluded “the introduction of testimony through a substitute or surrogate 

witness attesting to [an] original analyst’s report violate[s] the defendant’s right to 

confrontation”); see also Huettl, ¶ 34 (explaining that where an expert “testifies to [their] 

independent judgment, derived from an independent evaluation of [the] evidence, there 

will typically be no confrontation problem because the expert’s opinion will be an original 

product that can be tested through cross-examination” (internal quotation marks and 

citation omitted)). Thus, we conclude that Ms. Sarker’s testimony did not violate the 

Confrontation Clause and we affirm the metropolitan court’s decision to allow this 

testimony. We now turn to the admission of the toxicology report, State’s Exhibit 4.

{16} Again, Defendant argues that the admission of the toxicology report violated her 

right to confront the witnesses against her. Her arguments as to the admission of the 

report are the same arguments upon which she relies to challenge the admission of the 

State’s expert witness testimony and opinion. Consequently, for the reasons we 

concluded that the admission of the State’s expert witness testimony and opinion did 

not violate Defendant’s confrontation rights, and because Ms. Sarker prepared and 

signed the toxicology report as the “reviewer,” we hold that the admission of the 

toxicology report was not error and did not violate Defendant’s confrontation rights.

II. Amendment of the DWI Charge

{17} Defendant next argues that allowing the State to amend the DWI charge from an 

alcohol theory to a drug theory resulted in a new charge. Defendant specifically argues 

that these two charges require proof of different substances, therefore, allowing the 

State to amend these charges violates Defendant’s due process rights.

{18} We review a trial court’s application of Rule 7-303 NMRA de novo. See State v. 

Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852 (reviewing the district 

court’s interpretation and application of a rule of criminal procedure de novo). Rule 7-

303(A) states in relevant part that, “the [metropolitan] court may at any time prior to a 

verdict cause the complaint or citation to be amended with respect to any such defect, 

error, omission, imperfection or repugnancy if no additional or different offense is 

charged and if substantial rights of the defendant are not prejudiced.” (Emphasis 

added.) Amending is permissible “to conform to evidence introduced in support of the 

charge made in the information.” Roman, 1998-NMCA-132, ¶ 11. However, if the 

amendment raises an “entirely new offense with elements separate and apart from 

those in the original criminal information,” the amendment will have been error. Id. ¶ 14. 

“A variance is not fatal unless the accused cannot reasonably anticipate from the 
indictment what the nature of the proof against [them] will be.” State v. Marquez, 1998-

NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070. 

{19} Defendant argues that the metropolitan court erred by allowing the State to 

amend the charges at the directed verdict stage and convict Defendant under the drugbased DWI theory, pursuant to Section 66-8-102(B), when the State only charged her 

under the impaired to the slightest degree theory, pursuant to Section 66-8-102(A). 

Defendant contends that the different subsections represent distinct means of 

committing the crime of DWI and therefore constitute different offenses. Defendant also 

argues her due process rights were violated as a result of the amendment. 

{20} Assuming, without deciding, that Defendant is correct that the amendment to the 

charge of DWI was improper for the reasons she argues, Defendant still cannot prevail 

because she fails to point to any prejudice resulting from the amendment that would 

justify reversal. See State v. Fernandez, 1994-NMCA-056, ¶ 13, 117 N.M. 673, 875 

P.2d 1104 (“In the absence of prejudice, there is no reversible error.”); State v. 

Fairweather, 1993-NMSC-065, ¶ 31, 116 N.M. 456, 863 P.2d 1077 (“The mere 

assertion of prejudice, without more, is insufficient to establish prejudicial error 

warranting reversal of a conviction.”). Here, although the complaint alleged a DWI by 

alcohol offense, contrary to Section 66-8-102(A), Defendant was on notice that the 

State would pursue a DWI by drug theory pursuant to Section 66-8-102(B). Defendant 

was on notice of the DWI-drug theory because (1) at the time of her arrest, following a 

breath alcohol test which revealed a blood alcohol concentration (BAC) of 0.00, 

Defendant consented to a blood test due to her admission to the officer that she had 

taken prescription medications earlier; and (2) the State provided an exhibit list with 

Defendant’s toxicology report, which included the levels of oxycodone in Defendant’s 

blood sample. Because Defendant could have reasonably anticipated a DWI by drug 

theory before trial she was not prejudiced by the amendment. See Marquez, 1998-

NMCA-010, ¶ 20. 

{21} We now turn to Defendant’s sufficiency of the evidence argument. 

III. Sufficiency of Evidence 

{22} “The test for sufficiency of the evidence is whether substantial evidence of either 

a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable 

doubt with respect to every element essential to a conviction.” Montoya, 2015-NMSC010, ¶ 52 (internal quotation marks and citation omitted). “In reviewing the sufficiency of 

the evidence, we must view the evidence in the light most favorable to the guilty verdict, 

indulging all reasonable inferences and resolving all conflicts in the evidence in favor of 

the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 

“The relevant question is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” State v. Galindo, 2018-NMSC-021, ¶ 12, 415 

P.3d 494 (internal quotation marks and citation omitted).
{23} Under Section 66-8-102(B), the State had to prove that Defendant was “under 

the influence of any drug to a degree that renders the person incapable of safely driving 

a vehicle.” To support that Defendant could not safely drive a vehicle, the State relied 

upon (a) the traffic offense for failure to maintain a lane, (b) Defendant’s inability to 

properly perform field sobriety tests, and (c) Ms. Sarker’s expert opinion that Defendant 

was incapable of safely driving a vehicle based on the toxicology report and police 

report. We conclude there was substantial evidence to support this conviction.

{24} In this case, the evidence and testimony established that Officer Lujan stopped 

Defendant for failure to maintain a lane. Defendant did poorly on the standard field

sobriety tests, exhibiting signs of impairment. On an alternative test, Defendant had to 

stop and restart the alphabet test, after being reminded of what letter she had to stop, 

which she subsequently performed properly. After blowing a BAC of 0.00, Defendant 

admitted to taking prescription oxycodone and consented to a blood draw that revealed 

oxycodone. 

{25} Defendant argues that while the State asked Ms. Sarker her expert opinion, the 

State did not present evidence as to what level of oxycodone would render a person 

unable to drive safely. However, Ms. Sarker testified on direct examination that 

oxycodone has a depressant effect on the central nervous system and can slow down 

the user’s brain activity. During cross-examination, Ms. Sarker testified that, even 

though Defendant had oxycodone levels in the lower therapeutic range, there are still 

side effects from the drugs. She explained that oxycodone can have side effects which 

can include impairment such as sedation. During separate questioning by the trial court, 

who was acting as the fact-finder here, Sarker testified that she concluded that 

Defendant could not drive safely. Viewed in the light most favorable to the State, we 

conclude that there was sufficient evidence to support Defendant’s conviction for DWI 

(drug), contrary to Section 66-8-102(B). See Cunningham, 2000-NMSC-009, ¶ 26. 

IV. The Remote Bench Trial

{26} Finally, Defendant argues that her constitutional right to an in-person bench trial 

was violated. Under our Supreme Court’s COVID-19 emergency order, there must be a 

compelling need to have an in-person bench trial. The relevant Supreme Court order 

states,

All hearings, except for jury trials, shall use telephonic or audio-video 

connection for court appearances by all attorneys, litigants, and witnesses, 

unless the judge presiding over the bench trial or other hearing makes oral 

or written findings of fact and conclusions of law supporting a compelling 

need for an in-person appearance that are specific to the particular 

circumstances in an individual case.
In the Matter of the Safe and Effective Administration of the New Mexico Judiciary 

During the COVID-19 Public Health Emergency, No. 20-8500-025, at 11 (N.M. July 6, 

2020).1

{27} Before trial, Defendant filed an objection to trial by video appearance, arguing 

that Defendant would be disadvantaged due to difficulty seeing documents and facial 

expressions. Defense counsel also argued that Defendant had an older computer that 

could not handle a video hearing. The metropolitan court denied Defendant’s motion, 

stating there was no showing of a particularized need for an in-person trial in this case.

{28} Defendant urges this court to address the constitutionality of remote proceedings. 

However, this court is not the proper venue to address this constitutional concern, as a 

court lower in rank cannot deviate from decisions of a higher court. See Alexander v. 

Delgado, 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a 

court lower in rank than the court which made the decision invoked as a precedent 

cannot deviate therefrom and decide contrary to that precedent, irrespective of whether 

it considers the rule laid down therein as correct or incorrect.” (internal quotation marks 

and citation omitted)); see also N.M. Const. art. VI, § 3 (providing that our Supreme 

Court is granted “superintending control over all inferior courts”). Thus, because inperson trials were suspended by our Supreme Court we decline to address the 

constitutionality of the Supreme Court Order.

{29} Further, the Supreme Court Order does not require the district court to grant a 

defendant’s motion for in-person proceedings where such motion fails to present a 

compelling need. Defendant’s motion did not assert a compelling need for Defendant to 

appear in person; rather it merely asserted a general constitutional right to appear in 

person and potential technological issues. Because Defendant fails to establish that her 

motions were supported by a compelling need, we assign no error to the district court’s 

compliance with the Supreme Court Order. See State v. Aragon, 1999-NMCA-060, ¶ 

10, 127 N.M. 393, 981 P.2d 1211 (explaining that “[t]here is a presumption of 

correctness in the district court’s rulings” and that it is a defendant’s “burden on appeal 

to demonstrate any claimed error below”) (alterations, internal quotation marks, and 

citation omitted)). 

CONCLUSION

{30} For the reasons stated above, we affirm.

{31} IT IS SO ORDERED.

GERALD E. BACA, Judge

WE CONCUR:

 

1https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-025-Order-Adopting-PHEProtocols-for-Safe-and-Effective-Operation-of-NM-Courts-7-6-20-with-PHE-Protocols-Attached-1.pdf.
KRISTINA BOGARDUS, Judge

KATHERINE A. WRAY, Judge