This memorandum opinion was not selected for pub lication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 filed 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. 33,794 4 RONNY T. GARCIA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 William C. Birdsall, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Tania Shahani, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Judge. 17
{1} Appellant Ronny T. Garcia (Defendant) appeals from his conviction for 18 trafficking of methamphetamine. This Court’s first calendar notice proposed to affirm 192 Defendant’s conviction. Defendant file d a memorandum in opposition to the proposed 1 disposition. We are not pers uaded by Defendant’s arguments and affirm the judgment 2 and sentence. 3
{2} Defendant continues to argue there was in sufficient evidence that he transferred 4 methamphetamine to another. Defendant disputes the ev idence to support the statutory 5 element of transferring methamphetami ne under NMSA 1978, § 30-31-20 (2006). 6 This Court’s first calendar notice proposed to affirm on the basis that the confidential 7 informant’s (CI) testimony, as asserted inthe docketing statement, that Defendant 8 handed the CI methamphetamine and that th e CI paid Defendant money for it, was 9 sufficient evidence. [CN 3; DS 2] Defe ndant maintains that he could not have 10 transferred methamphetamine toanother because it was not his, he had no control over 11 it at any point, and therefore could not have transferred it to the CI. [MIO 4] 12 Defendant asserts that the woman in the room left the drugs on the table for the CI and 13 collected the money from the sale. [MIO 2] Defendant also continues to point to the 14 preliminary hearing where the CI testifie d that the baggie was laying on the coffee 15 table when he entered the room and it wa s not handed to him by Defendant. [MIO 3] 16
{3} Defendant argues that without establis hing possession or control, the State 17 could not prove he transferre d the drugs. In addition to the evidence discussed above, 18 it appears from the record thatthe CI also testified thatDefendant contacted him the 193 day of the controlled buy, said he had methamphetamine , and set up the buy. [RP 70, 1 72] The CI’s testimony was sufficient evidence that Defendant transferred 2 methamphetamine. See NMSA 1978, § 30-31-20(A)(2)(c) (2006) (defining “traffic” 3 as distribution or sale); see also NMSA 1978, § 30-31-2(G)&(J) (2009) (defining 4 “deliver” and “distribute” of a controlled subs tance). It was for the jury to resolve any 5 conflicts in the evidence and to determine the weight and credib ility of the evidence. 6 See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M . 686, 986 P.2d 482 (recognizing 7 that it is for the fact finder to resolve any conflict in the testimony of the witnesses and 8 to determine where the weight and credibilitylay). To the extentDefendant challenges 9 the credibility of that testimony, we do not “weigh the evidence and may not substitute 10 [our] judgment for that of the fact finder so long as there is sufficient evidence to 11 support the verdict.” State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 12 P.2d 1314; see also State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 13 829 (resolving all disputed facts in favor of the guilty verdict, indulging all reasonable 14 inferences in support of the verdict and disregarding all evidence to the contrary). 15
{4} In addition to arguing that there was insufficient evidence that he transferred 16 methamphetamine to another, Defendant argue s that the State failed to prove he knew 17 it was methamphetamine. [MIO 4-5] On app eal, this Court “view[s] the evidence in 18 the light most favorable to the guilty verdict, indulging all reasonable inferences and 194 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 1 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. While the CI’s testimony was 2 equivocal regarding whether he took the drugs from the table or they were handed to 3 him directly by Defendant, his testimony th at he handed Defendant the money was 4 sufficient evidence of knowledge, as well as control. See State v. Jimenez , 2004- 5 NMSC-012, ¶ 14, 135 N.M. 442, 90 P.3d 461 (stating that we must accept “all 6 reasonable inferences . . . and disregard all inferences to the contrary.” (internal 7 quotation marks and citation omitted)). To the extent Defendant asserts that he had no 8 knowledge of the methamphetamine, the jury was free to reject defense counsel’s 9 explanation of Defendant’s actions and tomake its own inferences based on the 10 evidence. See, e.g. , State v. Coffin , 1999-NMSC-038, ¶ 77, 128 N.M. 192, 991 P.2d 11 477. We therefore conclude that there was su fficient evidence to allow the jury to find 12 that Defendant knew it was methamphetamine. See State v. Chandler , 1995-NMCA13 033, ¶ 14, 119 N.M. 727, 895 P.2d 249 (holding that jury is free to “use their common 14 sense to look through testimony and drawinferences from all the surrounding 15 circumstances” (internal quotati on marks and citation omitted)). 16
{5} Defendant also continues to argue that the district court erred in admitting the 17 audio tape of the controlled buy. [DS 4] This Court’s first calendar notice proposed 18 to affirm, in part, on the basis that Defendant failed to indicate whether he preserved 19 these claims by specifically objecting on these grounds below. State v. Varela , 1999- 205 NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating the purpose of preservation). 1 Defendant repeats the general assertions in the docketing statement that he objected 2 to the tape on the basis that an insuffici ent foundation had been laid for its admission, 3 [DS 3, MIO 2] but it appears from the reco rd that Defendant only objected on hearsay 4 grounds. [RP 63-67, 70] Prior to trial, counsel indicated he had an issue with what was 5 described as the “video” of the controlle d buy and indicated he would file a motion 6 if the court wanted, but there appears to be no such motion in the record. [RP 53] 7
{6} Nevertheless, Defendant failed to meethis burden of demonstrating error. 8 Defendant argued that there was little to no evidence presented concerning the type 9 of equipment used, the expertise of the equipment’s operator, the quality of the 10 recording, or the chain of custody leading up to trial. [DS 3] This Court’s first 11 calendar notice proposed to affirm, in part , on the basis that the docketing statement 12 did not indicate what “little” evidence was presented in support of the elements he 13 challenged. The memorandum in opposition does not provide the evidence requested 14 but instead repeats the same argument madein the docketing statement. [MIO 2] See 15 State v. Ibarra , 1993-NMCA-040, ¶ 11, 116 N.M. 486, 489, 864 P.2d 302 (“A party 16 opposing summary disposition is required to come forward and specifically point out 17 errors in fact and/or law.”). Insofar as De fendant continues to a ssert that no chain of 18 custody was established, “[ q]uestions concerning a possible gap in the chain of 19 custody affects the weight of the evidence, not its admissibility.” State v. Peters , 1997- 206 NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896. And to the exte nt he asserts the audio 1 was hearsay, we disagree. See State v. Castillo-Sanchez , 1999-NMCA-085, ¶ 23, 127 2 N.M. 540, 984 P.2d 787 (recognizing that another person’s statements in a recorded 3 conversation containing an admission by the defendant were admissible because they 4 were needed to put the defendant’s statements in context). 5
{7} Last, Defendant continues to argue that the district court erred by admitting the 6 lab report into evidence becau se it was cumulative of the analyst’s testimony. [DS 4] 7 See State v. Franklin , 1967-NMSC-151, ¶¶ 9-10, 78 N.M. 127, 428 P.2d 982; State 8 v. Boyer , 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. Defendant reasserts the 9 argument that the lab report was cumulativ e once the substance was identified by the 10 lab analyst’s testimony. [MIO 8] Defendant has failed to demonstrate clear abuse by 11 the district court in admitting the lab report. See State v. Sarracino , 1998-NMSC-022, 12 ¶ 20, 125 N.M. 511, 964 P.2d 72 (“We revi ew the admission of evidence under an 13 abuse of discretion standard and will not re verse in the absence of a clear abuse.”); see 14 also State v. Johnson , 2004-NMSC-029, ¶ 38, 136 N.M. 348, 98 P.3d 998 (stating that 15 evidence of a different kind to prove the same fact, is not cumulative). 16
{8} For all of the above reasons and those stated in the first notice of proposed 17 disposition, we affirm the judgment and sentence. 18
{9} IT IS SO ORDERED. 197 __________________________________ 1 LINDA M. VANZI, Judge 2 WE CONCUR: 3

_________________________________ 4 JAMES J. WECHSLER, Judge 5

_________________________________ 6 MICHAEL D. BUSTAMANTE, Judge 7