### 1 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 th e 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 ev idence as a business record. We conclude that

### 2 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 conc lude that there was sufficient evidence to convict Defendant of both charges. We therefore affirm.

BACKGROUND

{2} In their bike patrol on June 18, 2004, atapproximately 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 dow n 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 De fendant walked toward the shed. Defendant then turned around and started walking back to the officers.

{3} When Officer Palos asked Defendant wh at 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 ope n, and there was no one on Defendant’s cell phone. Officer Palos aske d 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, f ound 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 poi nt, without provocation, Defendantput 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 tes tified as the records custodian of Mr. Young’s report. She identified the report and describe d 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.

### 3 {6} On appeal, Defendant argues that the distri ct 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 discre tion; 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 discreti on 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 recei ved 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 activitie s 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 Ne w 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 reas oned 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 wa s 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

### 4 public records exception. Id. at 782, 895 P.2d at 682. We explained that the defendant’s argument that the preparer of the report wa s “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 Christianto be controlling in this case. Defendant offers no argument against the admission of the report as a busine ss 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 anadequate 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 (fi nding 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 cons istency 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

### 5 782, 895 P.2d at 682. Defendant argues in this regard that Mr. Young’s report falls within this category because the Crime Lab prepares su ch reports of controlled substances “to help law enforcement agencies investigate and prosecute cases.” However, although Mr. Young’s laboratory report was a part of th e 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 tes timony of Ms. Elenbaas violated his rights under the United States and New Mexico cons titutions to confrontMr. 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 in troduce 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 th at 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 S upreme 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 interr ogating 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” becau se 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

### 6 measurement”; (3) the government officer preparing the report was not preparing testimony for trial; and (4) a blood alcohol report “is verydifferent 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 betweenthe Crime Lab and SLD to distinguish Dedmanfrom 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. Mo reover, 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 dutie s 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 accred iting body, and they use standard operating procedures with validated methods and “good science” to analyze substances submitted to them and prepare their reports. Although chemis ts 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 absen ce of proof, of an el ement 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 violatedbecause 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

### 7 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 indulgeall permissible inferences from the evidence in favor of the verdict. Id. We ascertain whether there wa s 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 vicinityof 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 st ood up, looked at the officers, and walked away from them at a quick pace to ward 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 o fficers an explanation about drinking a beer and talking on his cell phone that did not fit with the officers’ obs ervations. 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 E nglish and Officer Palos may have called out to him in English is inconsequential. Ev en if Defendant did not understand the command,

### 8 the officers observed him stand up, look at them , and quickly walk toward the shed, where the cocaine was found. We are similarly unconvi nced 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 verdic t”). 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 suspic ion 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 ha d 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 conc lude 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 indi cating that a tampering with evidence charge cannot be based solely on circumstantial evid ence, 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 testifie d to Defendant’s acti ons linking him to his disposing of the evidence.

CONCLUSION

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

### 9 {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