This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 27,234 9 JACKSON OREN GARDNER, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Ralph E. Trujillo, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Joseph P. Walsh, Assist ant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 242 Pursuant to the mandate of the Supr eme Court, the memorandum opinion filed 1 in the Court on May 14, 2009, is hereby w ithdrawn and the following is substituted 2 in its place. 3 Defendant Jackson Oren Gardner app eals his convictions for possession of 4 methamphetamine and possession of drug paraphernalia. Onappeal, Defendant 5 contends that (1) the district court erred in admitting the laboratory report of a forensic 6 scientist into evidence, (2) the districtcourt improperly prohibited him from pursuing 7 a relevant line of questioning with the fo rensic scientist regarding the quality and 8 quantity of the methamphetamine tested, and (3) the State failed to present evidence 9 sufficient to support his convictions. We affirm. 10 BACKGROUND 11 In February 2006, the Farmington Police Department’s dispatch contacted 12 Sergeant Keith McPheeters and informed him that Defendant was in side a retail store 13 in Farmington and had an outstanding arrest warrant. Sergeant McPheeters then 14 located Defendant and arrested him. Whileperforming a search incident to arrest, 15 Sergeant McPheeters discovered that Defendant was carrying a small tin container that 16 held a substance that he presumed to bemethamphetamine. Se rgeant McPheeters also 17 discovered that Defendant was carrying plastic baggies, a small scale, and a long glass 18 pipe. Defendant was subse quently charged with possessi on of methamphetamine and 193 possession of drug paraphernalia. 1 At trial, James Midkiff, a forensic scie ntist employed at the Northern Forensic 2 Laboratory of the New Mexico Department of Public Safety, testified regarding the 3 analysis that he performed on the subs tance that Sergeant McPheeters confiscated 4 from Defendant. Midkiff provided testimony about the procedure that he 5 implemented in creating drug analysis reports, and then the State moved to admit 6 Midkiff’s laboratory report regarding the substance that Sergeant McPheeters found 7 in Defendant’s possession. Defendant in itially objected on the grounds of lack of 8 foundation, relevance, and hear say. The district court admitted the laboratory report 9 under the business records excep tion to the hearsay rule, see Rule 11-803(F) NMRA, 10 and Midkiff proceeded to testify about the tests that he performed on the substance 11 found in Defendant’s po ssession and concluded that it was 0.11 grams of 12 methamphetamine. 13 Following Midkiff’s testimony on direct ex amination, the jury was temporarily 14 excused, and Defendant reiterated his request to the district court to cross-examine 15 Midkiff regarding the topic of quantitative te sting. Although the district court denied 16 Defendant’s request, concluding that testimony regarding Midkiff’s failure to 17 quantitatively test (in other words, test the purity of) the substance that he determined 18 to be methamphetamine w ould only serve to confuse the jury, Defendant was 194 permitted to make an offer of proof outsi de the presence of the jury. Defendant’s 1 offer of proof indicated that Midkiff’s la boratory does not perform quantitative testing 2 to determine the percentage of purity of th e substances that it tests, that Midkiff did 3 not believe that quantitative te sting would have “increased scientific reliability,” and 4 that Midkiff only tested the substance f ound in Defendant’s po ssession to determine 5 if it was a controlled substance of any pe rcentage of purity. Following Defendant’s 6 offer of proof, the jury returned to th e courtroom, and Defendant was permitted to 7 cross-examine Midkiff on topics other than his failure to perform quantitative testing. 8 Ultimately, the jury convicted Defe ndant of possession of methamphetamine 9 and possession of drug paraphernalia. This appeal followed. 10 ADMISSIBILITY OF LABORATORY REPORT 11 Defendant first argues that the district court erred in admitting Midkiff’s 12 laboratory report into evidence because it constituted inadmissible hearsay. We 13 examine the admission or exclusion of ev idence for abuse of discretion, and the 14 district court’s determination will not bedisturbed absent a clear abuse of that 15 discretion. State v. Worley , 100 N.M. 720, 723, 676 P.2d 247, 250 (1984). “An abuse 16 of discretion occurs when the ruling is clearly against the logic and effect of the facts 17 and circumstances of the case.” State v. Woodward , 121 N.M. 1, 4, 908 P.2d 231, 234 18 (1995) (internal quotation marks and citation omitted). 195 Here, the district court ruled that th e report was admissible under the business 1 records exception to the hearsay rule. See Rule 11-803(F). Our Supreme Court ruled 2 in State v. Aragon , 2010-NMSC-008, ¶ 17, 147 N.M. 474, 225 P.3d 1280, and State 3 v. Bullcoming , 2010-NMSC-007, ¶ 16, 147 N.M.487, 226 P.3d 1, that such forensic 4 reports are not admissible under either th e business records exception or the public 5 records exception to the hearsay rule. The district court erred in admitting the report 6 as a business record. 7 However, when that chemist who prepared the report testifies attrial, the report 8 is admissible. See Camino Real Mobile Ho me Park P’ship v. Wolfe , 119 N.M. 436, 9 448, 891 P.2d 1190, 1202 (1995) (concluding e xperts’ reports were inadmissible 10 unless the experts who prepared the documen ts testified under oath and were subject 11 to cross-examination). Cf. Aragon , 2010-NMSC-008, ¶ 36 (concluding that chemist’s 12 testimony about his own report was suffici ent evidence to support the conviction, 13 noting that the defendant abandoned his argument that the report was hearsay). 14 We conclude that, although the basis for the district court’s admission of the 15 report was incorrect, the report was nonethel ess admissible because Midkiff testified 16 under oath and was subject to cro ss-examination about the report. See State v. Ruiz , 17 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 (stating that as a general rule, 18 we will uphold the decision of a district court if it is right for any reason). We cannot 196 say that the district court abused its discretion in admitting the report under the 1 circumstances here. 2 EXCLUSION OF QUANTITATIVE TESTING TESTIMONY 3 Defendant next argues that the distri ct court erred in prohibiting him from 4 cross-examining Midkiff in front of the jury regard ing the lack of quantitative testing 5 on the substance confiscated from Defendant. Although Defendant seems to suggest 6 in his brief in chief that the district c ourt prevented any and all testimony concerning 7 Defendant’s assertion that the sample thatMidkiff tested had been contaminated, it 8 appears that the only testimony of Midkiff that the district court excluded was 9 testimony concerning the specific subject of quantitative testing. 10 A district court is permitted to exclude , sua sponte, the testimony of a witness, 11 provided that the parties are first informedof the decision and the district court’s 12 “specific concerns” so that the proponentof the evidence is afforded “a fair 13 opportunity to respond to the court’s concerns and to make the necessary offer of 14 proof.” State v. Balderama , 2004-NMSC-008, ¶ 20, 135 N.M. 329, 88 P.3d 845. We 15 review such an exclusion for an abuse of discretion and considerwhether “the ruling 16 is clearly against the logic and effects of the facts and circumstances of the case, is 17 clearly untenable, or is not justified by reason.” Id. ¶ 22. In undertaking our review, 18 we must consider whether the excluded te stimony was relevant and, if relevant, 197 whether the reason given by the district court for the exclusion was proper. Id. 1 This issue arose at trial following the St ate’s direct examination of Midkiff and 2 after the jury had been dismissed for a brief recess. In response to Defendant’s 3 request, the district court in formed Defendant that he w ould not be permitted to cross4 examine Midkiff on the topic of quantitative testing because such questioning would 5 “do nothing but confuse the jury.” However, the district court permitted Defendant 6 to make an offer of proof so that he could make a record for appeal. 7 According to Midkiff’s responses during Defendant’s offer of proof, 8 quantitative testing can be performed to de termine “the percentage of purity” of a 9 tested substance. Midkiff also stated th at although the Southern Forensic Laboratory 10 receives federal funding to perform quantitative testing, such testing is not performed 11 at the Northern Forensic Laboratory. Fi nally, Midkiff stated that he tested the 12 substance confiscated from Defendant for “any” presence of methamphetamine and 13 that performing quantitative testing would not have led to “increased scientific 14 reliability.” 15 We interpret the district court’s con cern that testimony regarding quantitative 16 testing would “confuse the jury” as an invocation of Rule 11-403 NMRA. Rule 11- 17 403 allows for the exclusion of otherwise re levant evidence if, among other things, the 18 danger of “confusion of the issues or misl eading the jury” substantially outweighs the 198 probative value of the offered evidence. Based on our review of Midkiff’s testimony 1 during Defendant’s offer of proof, we cannot say that the district court abused its 2 discretion in excluding testimony regarding quantitative testing. It appears that 3 Midkiff’s lack of quantitative testing had absolutely no bearing on whether the 4 substance confiscated from Defendant was, in fact, determined to be 5 methamphetamine. As the district court not ed, a determination of the percentage of 6 purity of the methamphetamine found in the substance tested, as long as some amount 7 of methamphetamine was disc overed, would have been irrelevant for purposes of 8 Defendant’s criminal liability. See NMSA 1978, § 30-31-23(D) (2005) (specifying 9 no minimum amount required to find a defendant guilty of possession). Furthermore, 10 we note that Defendant was permitted to undertake a lengthy cross-examination of 11 Midkiff in which he primarily focuse d on Midkiff’s alleged inadequacies in 12 performing the tests on the substance confiscat ed from Defendant in furtherance of his 13 theory that the substance had beco me contaminated with trace amounts of 14 methamphetamine while in the laboratory. Weconclude that the district court did not 15 abuse its discretion. 16 SUFFICIENCY OF THE EVIDENCE 17 Finally, Defendant argues that the ev idence presented at his trial was 18 insufficient to support his convictions. Inaddressing Defendant ’s argument, “[w]e 199 must view the evidence in the light most favorable to the State, resolving all conflicts 1 and indulging all permissible inferences infavor of the verdict[s,]” and we must 2 conduct our review “t o determine whether anyrational jury could have found the 3 essential facts to establish each elemen t of the crime[s] beyond a reasonable doubt.” 4 State v. Reed , 2005-NMSC-031, ¶ 14, 138 N.M. 365, 120 P.3d 447. 5 Defendant was convicted of one count of possessi on of methamphetamine, see 6 § 30-31-23(D), and one count of possession of drug paraphernalia, see NMSA 1978, 7 § 30-31-25.1(A) (2001). At Defendant’s trial, Sergeant McPheeters testified that he 8 found a long glass pipe, plastic baggies, a dig ital scale, and a small tin container that 9 held a “crystalline substance.” Next, Midki ff testified that he performed tests on the 10 substance found in the tin container and th at he concluded that it was 0.11 grams of 11 methamphetamine. The jury subsequently considered the evidence and concluded that 12 Defendant knowingly possessed methamphetamine and drug paraphernalia. Defendant 13 offers no explanation in support of an argument that no rational jury could have found 14 him guilty on both counts. Therefore, cons idering the evidence in the light most 15 favorable to the verdicts, weconclude that Defendant’s convictions were adequately 16 supported by the evidence presented at his trial. 17 CONCLUSION 18 We affirm. 1910 IT IS SO ORDERED. 1

_______________________________ 2 JAMES J. WECHSLER, Judge 3 WE CONCUR: 4

_______________________________ 5 RODERICK T. KENNEDY, Judge 6

_______________________________ 7 ROBERT E. ROBLES, Judge 8