IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 28,830 4 DAWN BEAULIEU, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Stephen K. Quinn, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Corey J. Thompson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 SUTIN, Judge. 17 Defendant appeals from her conviction fo r driving while under the influence of 18 drugs, contrary to NMSA 1978, Section 66- 8-102(B) (2008). In this Court’s notice 19 of proposed summary disposition, we proposed to affirm. Pursuant to several 20 extensions granted by this Court, Defendant has timely responded with a 212 memorandum in opposition in which she continues to argue for reversal pursuant to 1 State v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer , 103 N.M. 2 655, 712 P.2d 1 (Ct. App. 1985). We have considered Defendant’s arguments, and 3 we are not persuaded by them. We affirm. 4 Detective Harmer’s Testimony Was Sufficiently 5 Reliable Under the Daubert/Alberico Standard 6 Defendant contends that the district court erred in accepting the findings of Detective 7 Mike Harmer of the Clovis Police Department, who testified as a drug recognition 8 expert. [DS 3-4] The evidence about whic h Defendant complains is that Detective 9 Harmer testified that he “performed a battery of medical examinations on 10 [Defendant],” he “made [Defendant] stand in a dark room alone with him and guess 11 how much time had passed,” and “asked [Defendant] what drugs she had taken.” [DS 12 3] It appears that Detectiv e Harmer also testified that during the testing process, he 13 concluded that Defendant was “under the influence of a drug.” [RP 59] 14 In our notice of proposed summary disposition, we stated that we did not 15 believe we needed to decide whether De tective Harmer’s te stimony regarding his 16 conclusion that Defendant was impaired by drugs was scientific testimony subject to 17 the Daubert/Alberico reliability standard, because we proposed to conclude that even 18 if the district court’s admission of this ev idence was in error, the error was harmless. 193 “Error in the admission of evidence in a crimin al trial must be decl ared prejudicial and 1 not harmless if there is a reasonable possib ility that the evidence complained of might 2 have contributed to the conviction.” Clark v. State , 112 N.M. 485, 487, 816 P.2d 3 1107, 1109 (1991). To determine whether the admission of evidence was harmless, 4 this Court examines (1) whether substantial evidence exists to support the conviction 5 when the improperly admitted evidence is not considered; (2) whether there is a 6 disproportionate volume of permissible evid ence such that “in comparison, the amount 7 of improper evidence will appear so minuscu le that it could not have contributed to 8 the conviction”; and (3) whether there is s ubstantial conflicting evidence to discredit 9 the State’s permissible testimony. See State v. Barragan , 2001-NMCA-086, ¶ 19, 131 10 N.M. 281, 34 P.3d 1157. 11 In our notice of proposed summary disposition, we proposed to hold that there 12 was substantial evidence to support Defendant’s convicti on even without Detective 13 Harmer’s testimony, that there was a dispr oportionate volume of permissible evidence 14 supporting Defendant’s conviction, and th at there was no substantial conflicting 15 evidence to discredit the State’s permi ssible testimony. The State was required to 16 prove that (1) Defendant operated a motor vehicle and (2) that when she did so, she 17 was under the influence of drugs such that sh e could not safely drive. [RP 63] The 184 jury was instructed that even if a person is not actually driving, she is operating a 1 motor vehicle if she is “in actual physical control” of the vehicle. [RP 64] 2 Substantial evidence is defined as “suc h relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion[.]” State v. Salgado , 4 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and 5 citation omitted). In our notice of proposed summary disposition, we stated that there 6 was substantial evidence that Defendant operated a motor vehicl e because there was 7 circumstantial evidence that Defendant was in actual physical control of the 8 vehicle—she was found in the driver’s seat of a vehicle parked against the flow of 9 traffic on a public road, with other passengers in the car. [DS 2; RP 54-56] Although 10 Officer Richard Johnson of the Clovis Police Department apparently testified that he 11 did not observe the keys in the vehicle [D S 3], we find no requirement in our case law 12 that the State present eviden ce as to the location of the keys in a particular case. 13 While we do have cases that discuss the location of the keys, we believe that this is 14 because the location of the keys was in troduced into evidence in those cases, not 15 because the introduction of evidence of the lo cation of the keys is a requirement for 16 conviction. See State v. Sims , 2008-NMCA-017, ¶¶ 7, 9, 143 N.M. 400, 176 P.3d 17 1132 (listing cases in which there was evidence that the keys were in the ignition and 185 discussing the relevance of ev idence in that case that the defendant’s keys were on the 1 passenger’s seat). Here, the fact that Defendant was in the driver’s seat of a car that 2 was registered to her or a family member , that was parked on a roadway against the 3 flow of traffic, and that still had passengers in it, was substantial circumstantial 4 evidence that Defendant either had just driven the vehicle or was in a position to 5 “exercise direct influence over the ve hicle” as defined in our case law. See id. ¶ 9. 6 Accordingly, regardless of the absence of any testimony about the location of the 7 keys, we proposed to conclude that th ere was substantial evidence to support a 8 conclusion that Defendant was in actual physical control of the vehicle. 9 We also proposed to conclude thatthere was substantial evidence that 10 Defendant was impaired by drugs to such a degree that she coul d not safely drive. 11 Officer Christopher Lopez testified that after he asked Defendant to step out of the 12 vehicle, she was swaying from side to si de, had difficulty maintaining her balance, 13 and had a slow reaction time in responding to questions. [RP 55] Officer Lopez also 14 testified that Defendant was unable to comple te the field sobriety tests as instructed. 15 [RP 55] This testimony provides substan tial evidence that Defendant was impaired 16 to such a degree that she could not sa fely drive. Evidence that Defendant’s 17 impairment was caused by drugs came in the form of Defendant’s statement to Officer 186 Lopez that she had taken seventeen Xanax pills [RP 56], evidence that a sample of 1 Defendant’s blood contained Xanax and Ben adryl [RP 51-53], and expert testimony 2 by Dr. Jen Hwang, the bureau chief of th e New Mexico Department of Health 3 toxicology lab, that the levels of these drugs in Defendant’s sy stem were consistent 4 with the physical symptoms she exhibited in her encounter with the police. [RP 53] 5 Defendant has responded in her memorandum in opposition that there was 6 insufficient evidence to support her convicti on in this case. [MIO 10-11] Defendant 7 apparently believes that her conviction was base d on improper speculation and 8 conjecture. [MIO 11] However, we believethat the State presented sufficient facts 9 from which a jury could appropriately infer that Defendant was inactual control of a 10 vehicle while under the influence of drugs. As a jury is permitted to draw reasonable 11 inferences from the evidence presented, we hold that th ere was sufficient evidence to 12 support the conviction. See State v. Martinez , 2002-NMCA-043, ¶ 13, 132 N.M. 101, 13 45 P.3d 41 (reviewing the evidence to determine “whether a rati onal jury could have 14 drawn reasonable inferences” from the evidence to conclude that the defendant was 15 driving under the influence of alcohol); see also State v. Duran , 2006-NMSC-035, ¶ 16 5, 140 N.M. 94, 140 P.3d 515 (“Th e test for sufficiency of the evidence is whether 17 substantial evidence of either a direct or circumstantial nature exists to support a 187 verdict of guilt beyond a reasonable doubt withrespect to every element essential to 1 a conviction.” (internal quotati on marks and citation omitted)). 2 In our notice of proposed summary dis position, we proposed to conclude that 3 the evidence offered by the State was so overwhelming that any scientific expert 4 testimony given by Detective Harmer could not have contributed to the conviction. 5 Some of the testimony that Detective Harmer gave appears to have been about field 6 sobriety tests he gave her [RP 58], and this testimony is not scientific evidence. See 7 State v. Torres , 1999-NMSC-010, ¶ 31, 127 N.M. 20, 976 P.2d 20 (indicating that 8 “most of the field sobriety tests are self-expl anatory,” as they allo w an officer to better 9 observe “common physical manifestations of intoxication”). Detective Harmer’s 10 testimony about the medical te sts he gave Defendant app ears to have been primarily 11 directed toward explaining why he thought the impairment he observed in Defendant 12 was the result of drugs such that he was justified in ordering a blood test. [RP 58-59] 13 Any testimony about these tests or about hi s conclusion that De fendant was impaired 14 by drugs was minuscule in light of th e testimony regarding Defendant’s own 15 statement about the amount of Xanax she ha d taken, the blood test, the field sobriety 16 tests, the other observable evidence of impairment, and the expe rt testimony offered 17 by Dr. Hwang. As Defendant offered no evid ence that would contradict the State’s 188 evidence, we proposed to conclude that any error in the admission of any scientific 1 testimony by Detective Harmer was harmless. 2 Defendant does not respond to our harmless error analysis in her memorandum 3 in opposition, and as her arguments do not otherwise persuade us, we hold that any 4 error in the admission of Detectiv e Harmer’s testimony was harmless. 5 Detective Harmer Was Qualified as an Expert in Drug Recognition 6 Defendant contends that Detective Harmer should not have been permitted to 7 testify as a medical professional. [DS 4] However, the district court designated 8 Detective Harmer as an expert in “drug recognition,” not as a medical professional. 9 [RP 58] Therefore, we look to whether th e district court erred in concluding that 10 Detective Harmer was qualified as an expert in drug recognition. “In determining 11 whether an expert witness is competent or qualified to testify, [t]h e trial court has wide 12 discretion . . ., and the court’s determinati on of this question w ill not be disturbed on 13 appeal, unless there has been anabuse of this discretion.” Lopez v. Reddy , 14 2005-NMCA-054, ¶ 14, 137 N.M. 554, 113 P.3d 377 (alterations in original) (internal 15 quotation marks and citation omitted). A district court’s ruling that an expert is 16 qualified “will not be disturbed . . .[,] unless [it] is manifestly wrong or the trial court 179 has applied wrong legal standard s in the determination.” Id. (alterations in original) 1 (internal quotation marks and citation omitted). 2 In this Court’s notice of proposed summary disposition, we proposed to hold 3 that the district court did not abuse its discretion in this case. Detective Harmer 4 testified that he is certified as a drug rec ognition expert, that hehad over two thousand 5 hours of training, and that he had had both classroom education and on-the-job 6 training in evaluating whether a person is under the influence of drugs. [RP 58] We 7 proposed to conclude that this evidence was sufficient for the district court to 8 determine that Detective Harmer was qualified. We noted that the question of whether 9 the substance of any scientif ic testimony he may have offered was sufficiently reliable 10 is an issue distinct from the question of De tective Harmer’s qualifications and that it 11 therefore did not affect our proposed conclu sion that the district court did not abuse 12 its discretion in finding Detective Harmer to be qualified to testify about the 13 administration of the tests or the conclusi ons he reached based on his administration 14 of the tests. See Torres , 1999-NMSC-010, ¶ 47 (holding that even if an expert cannot 15 testify as to the scientific basis of certain tests, he may be qualified by education and 16 training to administer them and would th erefore be qualified to testify about the 17 administration of the tests in a particular case). Detective Harmer did not attempt to 1810 testify about the scientific re liability of any of the tests heperformed, and we therefore 1 are not faced with the question of whether the district court erred in qualifying him as 2 an expert about the scientific validity of those tests. 3 In Defendant’s memorandum in opposition, she seems to conflate the issue of 4 Detective Harmer’s qualifications with th e question of whether the methods he used 5 to draw his conclusions were scientifically reliable. [MIO 5-6] To the degree that 6 Defendant challenges the admi ssion of scientific evidence that was not reliable, we 7 have already held that any error in the admission of this testimony was harmless. As 8 Defendant does not otherwise challenge our proposedconclusion that Detective 9 Harmer was qualified as an e xpert in the subject matter about which he testified, we 10 now hold that the district court did not abus e its discretion in determining that he was 11 qualified as an expert. 12 The Sufficiency of the Evidence 13 Defendant contends that there was insufficient evidence to support her 14 conviction because she was not observed actually driving and because there was no 15 testimony about the location of the car keys. [DS 4] We have already resolved this 16 question in our discussion of Issue 1 and we hold that substantial evidence supports 17 Defendant’s conviction. 1811 Evidence of the Outstanding Arrest Warrant 1 Defendant argues that she was unfairly prejudiced by the fact that the State 2 introduced evidence that Defendant was in itially approached by the police because of 3 an outstanding warrant unrelated to this case. [DS 4] At trial, the State called Officer 4 Johnson to the stand. Officer Johnson st ated that he was looking for Defendant 5 because there was an active warrant for her arrest. [RP 54] It doe s not appear that he 6 testified about the reason the warrant had b een issued. Defendant objected to Officer 7 Johnson’s statement and apparently requested a mistrial. [RP 54] The district court 8 shared Defendant’s concern that this info rmation might prejudice the jury, since the 9 judge indicated in a bench conference th at this information should not have come 10 before the jury, and then instructed the jury not to make any assumptions about the 11 warrant and not to “hold [the warrant] agai nst Defendant.” [RP 54] In our notice of 12 proposed summary disposition, we proposed to conclude that the admission of this 13 evidence was harmless in light of the curativ e instruction given by the district court 14 and in light of the overwhelming ev idence discussed in Issue 1 supporting 15 Defendant’s conviction. See State v. Gutierrez , 2007-NMSC-033, ¶ 23, 142 N.M. 1, 16 162 P.3d 156 (noting that a curative instruc tion may be considered in determining 17 whether an error was harmless). 1812 Defendant again asserts that the introduc tion of this evidence warrants reversal 1 of her conviction. [MIO 11-12] As she has presented no new facts or arguments that 2 would persuade this Court that its initial proposal was in error, we hold that the district 3 court did not abuse its discretion in failing to grant a mistrial because the admission 4 of this evidence did not prejudice Defendant. See State v. McDonald , 5 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752 (reviewing the denial of a mistrial 6 for an abuse of discretion). 7 Therefore, for the reasons stated in this opinion and in our notice of proposed 8 summary disposition, we affi rm Defendant’s conviction. 9 IT IS SO ORDERED. 10

__________________________________ 11 JONATHAN B. SUTIN, Judge 12 WE CONCUR: 13

_________________________________ 14 CELIA FOY CASTILLO, Judge 15

_________________________________ 16 ROBERT E. ROBLES, Judge 17