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Certiorari Denied, No. 31,790, July 17, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-090

Filing Date: June 2, 2009

Docket No. 27,437

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

BERNARDO RODRIGUEZ, JR.,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Joe Parker, District Judge

Gary K. King, Attorney General

Francine A. Chavez, Assistant Attorney General

Santa Fe, NM

for Appellee

Robert E. Tangora, LLC

Robert E. Tangora

Santa Fe, NM

for Appellant

OPINION

VANZI, Judge.

{1} Defendant was convicted of: (1) possession of a controlled substance

(methamphetamine), a fourth degree felony in violation of NMSA 1978, Section 30-31-

23(D) (2005); (2) possession of a dangerous drug (Flexeril) without a prescription, a fourth

degree felony in violation of NMSA 1978, Section 26-1-16(E) (2005); (3) attempt to escape

from custody or control of a peace officer, a fourth degree felony in violation of NMSA
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1978, Section 30-22-10 (1963); and (4) criminal damage to property ($1,000 or less), a petty

misdemeanor in violation of NMSA 1978, Section 30-15-1 (1963). We address: (1) whether

the State may, by filing a criminal information, charge Defendant with a fourth degree felony

after Defendant was bound over to the district court by the magistrate court on a

misdemeanor following a preliminary hearing; and (2) whether Defendant was entitled to

a directed verdict on the charge of possession of a controlled substance (methamphetamine)

because of alleged gaps in the chain of custody of the methamphetamine seized from his

person. We vacate Defendant’s conviction for violating Section 26-1-16(E) and affirm

Defendant’s remaining convictions. 

I. BACKGROUND

{2} Officers Roland Kroeger and Jerry Crowe of the Clovis Police Department were

dispatched to a hotel after the Clovis Police Department received an anonymous tip that

narcotics use was in progress. The officers knocked on Defendant’s hotel room door, and

Defendant responded. When asked simple questions, Officer Crowe observed that

Defendant’s responses “didn’t make sense.” The officers obtained Defendant’s consent to

search his room. During the search, officers discovered two prescription pill bottles

containing pills and a plastic baggy also containing pills in a duffel bag belonging to

Defendant. The labels on the pill bottles indicated that the pills did not belong to Defendant.

Using a field guide, the officers determined that the pill bottles contained two different types

of prescription medication, Cephalexin and Flexeril. The pills in the plastic baggy were

identified as Vicodin and another “narcotic painkiller.” Following Defendant’s arrest, the

officers discovered a “small plastic bindle” in Defendant’s left front pocket that contained

a substance the officers immediately recognized as methamphetamine. 

{3} A criminal complaint was filed in the Curry County Magistrate Court which alleged

that Defendant committed certain offenses including possession of methamphetamine and

possession of a controlled substance without a prescription in violation of Section 30-31-

23(C), a misdemeanor offense. Following a preliminary hearing, the magistrate judge found

that there was probable cause to conclude that Defendant committed the offenses in the

criminal complaint, and a bind-over order to stand trial in the district court was filed. 

{4} The State subsequently filed a criminal information in the district court charging that

Defendant committed the following offenses: (1) possession of a controlled substance

(methamphetamine), a fourth degree felony in violation of Section 30-31-23(D); (2)

possession of a dangerous drug (Flexeril) without a prescription, a fourth degree felony in

violation of Section 26-1-16(E); (3) attempt to escape from custody or control of a peace

officer, a fourth degree felony in violation of NMSA 1978, Section 30-22-10 (1963); and (4)

criminal damage to property ($1,000 or less), a petty misdemeanor in violation of NMSA

1978, Section 30-15-1 (1963). Defendant waived arraignment on the charges set forth in the

criminal information and entered a not guilty plea. 
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{5} At trial, Defendant moved to amend the criminal information with respect to Count

II, possession of a dangerous drug without a prescription, arguing that the charge contained

in the criminal information was improper. Defendant pointed out that the information

charged him with a felony count of possession of a dangerous drug without a prescription,

but the magistrate judge had bound him over for trial on a misdemeanor charge of possession

of a controlled substance without a prescription. The State argued that Defendant’s motion

was untimely and that Defendant had waived his right to make the motion. At the close of

trial, Defendant renewed the motion in the form of a motion to strike and a motion for

directed verdict, which the district court denied.

{6} Defendant appeals, arguing that permitting the State to file a criminal information

charging him with a felony offense, when a bind-over order issued by the magistrate court

following the preliminary hearing only charges him with a misdemeanor offense, violates

Article II, Section 14 of the New Mexico Constitution. 

{7} Defendant also moved for directed verdict with regard to Count I, possession of a

controlled substance, asserting that the State failed to adequately demonstrate a complete

chain of custody concerning the substance Officer Crowe seized from Defendant during the

search incident to arrest. Defendant argued that there was no way to demonstrate that the

substance seized by Officer Crowe was the same substance James Mitkiff, an employee of

the Department of Public Safety at the Northern Forensic Laboratory in Santa Fe, tested in

his lab. Accordingly, Defendant argued that James Mitkiff’s testimony that the substance

he tested was methamphetamine had no bearing on the identity of the substance seized from

Defendant. The district court denied the motion. 

II. DISCUSSION

A. Due Process and the Bind-Over Order

{8} Defendant asserts that his right to due process, pursuant to Article II, Section 14 of

the New Mexico Constitution, was violated when the State filed a criminal information that

did not conform to the bind-over order stemming from his preliminary hearing before the

magistrate judge. During trial, Defendant objected that altering the charges as set forth in

the bind-over order was impermissible and that the felony charge stated in the criminal

information for violating Section 26-1-16(E), possession of a dangerous drug without a

prescription should be amended to reflect a petty misdemeanor charge of possession of a

controlled substance without a prescription. Because Defendant was never provided with

an initial determination of probable cause for the charge of possession of a dangerous drug

without a prescription, we conclude that Article II, Section 14 of the New Mexico

Constitution governs the right at stake regarding this felony charge. Accordingly, we apply

a de novo review. State v. Chavez, 2008-NMCA-125, ¶ 5, 144 N.M. 849, 192 P.3d 1226

(holding that appellate courts review constitutional claims de novo). 
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{9} The criminal complaint initiating the prosecution of Defendant was not included in

the record of proceedings. Thus, to resolve this issue we must rely upon the record before

the Court to establish the underlying facts. It is undisputed by the parties that the criminal

complaint filed in the magistrate court charged Defendant with possession of a controlled

substance without a prescription in violation of Section 30-31-23(C), a misdemeanor offense.

Defendant was bound over for trial on this misdemeanor charge. The criminal information

subsequently filed in district court altered the charge from possession of a controlled

substance to possession of a dangerous drug without a prescription in violation of Section

26-1-16(E), a fourth degree felony. 

1. Article II, Section 14

{10} The pertinent language of Article II, Section 14 of the New Mexico Constitution

states: 

[n]o person shall be held to answer for a capital, felonious or infamous crime

unless on a presentment or indictment of a grand jury or information filed by

a district attorney or attorney general or their deputies . . . No person shall be

so held on information without having had a preliminary examination before

an examining magistrate, or having waived such preliminary examination.

N.M. Const. art. II, § 14. Our Supreme Court in State v. Coates, 103 N.M. 353, 356, 707

P.2d 1163, 1166 (1985), abrogated on other grounds as stated in State v. Brule, 1999-

NMSC-026, ¶ 3, 127 N.M. 368, 981 P.2d 782, observed that this section of the New Mexico

Constitution ensures that “no person is deprived of his liberty without due process of law.”

Our Supreme Court clarified that Article II, Section 14 mandates two essential findings: “a

defendant cannot be held for trial unless a preliminary hearing has been held at which time

[1] the accused is informed of the crime charged against him and [2] a magistrate has

determined that probable cause exists to hold him.” Id.

{11} In Coates, the Court held that an amended criminal information was valid where,

after a mistrial, the state filed an amended information that added charges previously omitted

because of a clerical error in the original bind-over order. Id. at 355, 707 P.2d at 1165. The

magistrate judge in Coates had orally pronounced charges that were incorrectly transcribed

and omitted in the bind-over order. Id. Our Supreme Court noted that because the charges

added in the amended information were not new charges but merely original charges that

were inadvertently omitted from the written bind-over order, there was no error. Id. at 356,

707 P.2d at 1166. As we discuss below, there was no similar error with regard to the bindover order in this case. 

{12} Throughout its discussion in Coates, the Court relied on State v. McCrary, 97 N.M.

306, 639 P.2d 593 (Ct. App. 1982) and State v. Melendrez, 49 N.M. 181, 159 P.2d 768

(1945). Noting that the underlying facts of McCrary and Melendrez differ slightly, the Court

nevertheless concluded that both cases stand for a single proposition: the state is prevented
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from filing a criminal information that does not substantially conform to the magistrate

court’s bind-over order. Coates, 103 N.M. at 356, 707 P.2d at 1166; McCrary, 97 N.M. at

312, 639 P.2d at 599; Melendrez, 49 N.M. at 188, 159 P.2d at 773. Our Supreme Court

summarized how Melendrez and McCrary equally support the underlying constitutional

concern in Article II, Section 14: “by requiring that the information conform to the

bind-over order, the defendant is assured that his detention is based upon charges of which

he has been apprised and which have been reviewed by a neutral authority.” Coates, 103

N.M. at 356, 707 P.2d at 1166. These three cases each support the conclusion that absent

some clerical error, where charges have been submitted by criminal information and where

those charges were not included in the bind-over order, the defendant has not been afforded

due process.

{13} We now turn to the facts of this case. The criminal information included a felony

charge, Count II, possession of a dangerous drug (Flexeril) without a prescription. That

felony charge was not contained in either the criminal complaint or in the subsequent bindover order stemming from Defendant’s preliminary hearing. Melendrez, McCrary, and

Coates instruct us that allowing the state to charge a defendant by information with an

offense not considered or included in the bind-over order deprives that defendant of his due

process rights by subjecting him to criminal prosecution without probable cause. Unlike

Coates, there is no claim that an error is contained in the bind-over order. The charge in the

criminal information for possession of a dangerous drug without a prescription was

completely new. As a result, the magistrate judge made no probable cause determination in

the preliminary hearing to charge Defendant with Count II as set forth in the criminal

information. Because Defendant was never afforded a probable cause determination with

respect to Count II, we conclude that he has demonstrated a deprivation of his due process

rights and we must now assess the consequences of such a violation. 

2. Consequences and Remedy

{14} In State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964), three defendants asserted they

were denied their right to counsel at the preliminary hearing in violation of Article II,

Section 14. Id. at 367-68, 393 P.2d at 712-13. The state responded that the defendants

waived their right to counsel at a hearing in the district court prior to arraignment. Id. at 368,

393 P.2d at 713. It is well settled that a district court may inquire whether a defendant is

willing to waive preliminary examination and the rights afforded under Article II, Section

14. State v. Sanchez, 101 N.M. 509, 511, 684 P.2d 1174, 1176 (Ct. App. 1984); State v.

Rogers, 31 N.M. 485, 498, 247 P. 828, 833-34 (1926). The defendants in Vaughn countered

that because they were denied their constitutional right to a preliminary hearing as provided

in Article II, Section 14, the district court never obtained jurisdiction over their case which

precluded a waiver in the district court. Vaughn, 74 N.M. at 368, 393 P.2d at 714. 

{15} Our Supreme Court rejected this argument explaining that “[d]istrict courts have

jurisdiction of criminal cases, N.M. Const. Art. VI, § 13. The district court acquired

jurisdiction of this case upon the filing of the information.” Id.; Mascarenas v. State, 80
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N.M. 537, 538, 458 P.2d 789, 790 (1969) (stating that “the district court acquires jurisdiction

of a criminal case upon the filing of the information”); State v. Hunter, 2005-NMCA-089,

¶ 12, 138 N.M. 96, 117 P.3d 254 (same). However, our Supreme Court in Vaughn held that,

while the district court’s initial acquisition of jurisdiction was not in contention, “the

jurisdiction acquired [by the district court] at the beginning of the case may be lost ‘in the

course of the proceeding’ by failure of the court to remand for a preliminary examination

when its absence is timely brought to the attention of the district court.” Vaughn, 74 N.M.

at 369, 393 P.2d at 714. As such, our Supreme Court instructed:

When violation of a constitutional right in the proceedings before the

magistrate is brought to the attention of the [district] court and found to exist,

the accused’s right and the court’s duty is to abate the information until there

has been a proper preliminary examination, and remand the accused to the

magistrate for such examination unless it be competently waived.

Id. Abatement is defined as (1) “[t]he act of eliminating or nullifying” (“abatement of a

nuisance”; “abatement of a writ”) and (2) “[t]he suspension or defeat of a pending action for

a reason unrelated to the merits of the claim” (“the defendant sought abatement of the suit

because of misnomer.”). Black’s Law Dictionary 3 (8th ed. 2004) (illustrating the distinction

between an “abatement” and a “stay of proceedings” and explaining that “[a]lthough the

term ‘abatement’ is sometimes used loosely as a substitute for ‘stay of proceedings,’ the two

may be distinguished on several grounds. For example, when grounds for abatement of an

action exist, the abatement of the action is a matter of right, but a stay is granted in the

court’s discretion.”). The Vaughn directive was subsequently reiterated in Mascarenas, 80

N.M. at 538, 458 P.2d at 790, and Sanchez, 101 N.M. at 511, 684 P.2d at 1176. Thus, the

precedent promulgated by Vaughn requires us to determine whether the district court

acquired jurisdiction before undertaking any analysis of an alleged waiver. 

{16} Finally, we observe that a criminal defendant may raise an objection based on Article

II, Section 14 at any time during proceedings and following conviction. See State v. Chacon,

62 N.M. 291, 293-94, 309 P.2d 230, 232 (1957) (reversing a criminal defendant’s conviction

and sentence because “the ‘criminal complaint’ upon which he was first sentenced in the

district court failed to meet the requirements of [Article II, Section 14], thereby denying the

court jurisdiction to accept the guilty plea and impose sentence upon him”). Having set forth

the relevant precedent, we return to our discussion of the present matter.

{17} During the course of trial and again after the State rested, Defendant objected to the

criminal information. As noted, pursuant to McCrary, Melendrez, and Coates, the addition

of this incorrect charge amounted to a violation of Article II, Section 14 of the New Mexico

Constitution. Pursuant to Vaughn, Mascarenas, and Sanchez, once it became aware of this

error, it was the district court’s duty to obtain a competent waiver from Defendant or abate

the information until a proper preliminary hearing for Defendant’s alleged violation of

Section 26-1-16(E) occurred. Because the district court did not do so, and in the absence of

a competent waiver, we hold that Defendant’s conviction for violating Section 26-1-16(E)
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must be vacated. Defendant was held to answer for that offense in violation of Article II,

Section 14 of the New Mexico Constitution. See Chacon, 62 N.M. at 294, 309 P.2d at 232

(reversing the sentence imposed by district court for lack of jurisdiction over the defendant

where prosecution was initiated in violation of Article II, Section 14 of the New Mexico

Constitution). Our conclusion is unaffected by the State’s contention, which we discuss

below, that Defendant waived his right to object to the constitutional deprivation by entering

a not guilty plea during his arraignment.

3. Waiver

{18} The State does not deny that the charge under Count II was new or that it is barred

from charging Defendant by criminal information with crimes not included in the bind-over

order or criminal complaint. Rather, the State contends that Defendant was arraigned

roughly three weeks after the State filed the criminal information and failed to raise any

constitutional challenge to the counts included in that information at that time. Because

Defendant was represented by counsel at the arraignment and because counsel failed to

object to the counts listed in the criminal information until trial, the State argues that

Defendant waived his constitutional right to contest the fact that the information charged him

with offenses not included in the bind-over order. We disagree.

{19} In support of the assertion that Defendant waived his right to object by entering a not

guilty plea during arraignment, the State cites a string of cases holding that “the right to have

a preliminary hearing may be and is waived upon entry of a plea in district court.” Sanders

v. Cox, 74 N.M. 524, 525, 395 P.2d 353, 354 (1964); State v. Blackwell, 76 N.M. 445, 446,

415 P.2d 563, 564 (1966) (“[T]he entry of a plea in the district court . . . when represented

by competent counsel, serve[s] as a waiver of any defects in the preliminary hearing.”); State

v. Darrah, 76 N.M. 671, 673, 417 P.2d 805, 807 (1966) (same). In light of this precedent,

the State asserts that Defendant’s “entry of the plea [at arraignment] in district court served

as a waiver to challenge any deficiencies Defendant now claims occurred during the

preliminary examination.” We understand the State’s argument to mean that if a defendant

can waive a preliminary examination, he can also waive a deficiency in a bind-over order

resulting from the preliminary examination. The question in this case, however, is not

whether a defendant can waive a deficiency in the bind-over order but whether Defendant

in this case made an informed and competent waiver.

{20} With respect to waivers of constitutional rights, our Supreme Court has instructed

that

[a] waiver is ordinarily an intentional relinquishment or abandonment of a

known right or privilege which must be made in a knowing and voluntary

manner. To determine the validity of a waiver, a reviewing court must

consider the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused. To be
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valid waivers not only must be voluntary but must be knowing, intelligent

acts done with sufficient awareness of the relevant circumstances and likely

consequences . . . [T]he court’s obligation to make sure that the waiver is

valid, and is predicated upon a meaningful decision of the accused, does not

require any particular ritual or form of questioning. Although no particular

litany of questions may be required, there must be a sufficient colloquy to

satisfy the [district] court’s responsibilities; a knowing and voluntary waiver

cannot be inferred from a silent record.

State v. Padilla, 2002-NMSC-016, ¶¶ 18-19, 132 N.M. 247, 46 P.3d 1247 (internal quotation

marks and citations omitted). We see no basis to conclude that entering a not guilty plea to

a defective criminal information at arraignment itself constituted a waiver of Defendant’s

rights to a probable cause hearing under Article II, Section 14 of the New Mexico

Constitution. There is no evidence in the record that Defendant knowingly and voluntarily

waived his right to be “informed of the crime charged against him” and to a determination

“that probable cause exists to hold him” for that felony charge. Coates, 103 N.M. at 356,

707 P.2d at 1166. Indeed, defense counsel was ignorant of the fact that the criminal

information altered the charges set out in the bind-over order. We have previously noted that

in the absence of a clear showing of waiver, this Court on appeal “will indulge in every

reasonable presumption against the waiver of a fundamental constitutional right, and will not

presume acquiescence in its loss.” State v. Lewis, 104 N.M. 218, 221, 719 P.2d 445, 448 (Ct.

App. 1986). Based on the foregoing, we conclude that Defendant’s not guilty plea at his

arraignment cannot serve as a waiver of the constitutional requirements mandated in Article

II, Section 14.

{21} Defendant raises two additional issues concerning his conviction for possession of

a dangerous drug without a prescription under Section 26-1-16(E): that the elements

instruction concerning this crime was flawed, and that this offense merged with his

conviction for possession of a controlled substance. Since we have concluded that his

conviction for possession of a dangerous drug without a prescription must be vacated, we

do not address these arguments. See State v. Jacobs, 102 N.M. 801, 803, 701 P.2d 400, 402

(Ct. App. 1985) (“We do not give advisory opinions.”). 

B. Chain of Custody

{22} Defendant next argues, pursuant to Franklin and Boyer that the district court

erroneously denied his motion for directed verdict with regard to Count I, possession of a

controlled substance. We note that Defendant did not challenge the admissibility of the

methamphetamine on foundational grounds nor did he challenge the chain of custody during

the course of trial. Instead, Defendant moved for a directed verdict at the close of trial

arguing that “there was insufficient evidence that the substance tested and identified by the

crime lab technician was the same substance found on the Defendant.” 

{23} The nature and form of Defendant’s objection, a motion for directed verdict, permits

us to inquire only “whether substantial evidence of either a direct or circumstantial nature

exists to support a verdict of guilt beyond a reasonable doubt with respect to every element
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essential to [Defendant’s] conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314,

1319 (1988). It is well settled that we do not “weigh the evidence and may not substitute

[our] judgment for that of the fact finder so long as there is sufficient evidence to support the

verdict.” Id. Thus, the Court resolves all disputed facts in favor of the guilty verdict,

indulging all reasonable inferences in support of the guilty verdict, and disregarding all

evidence to the contrary. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

{24} As we have noted, Defendant did not make any objection to the admission of the

methamphetamine but instead argued to the district court that the State presented insufficient

evidence to establish that the methamphetamine was seized from Defendant. The admission

of real or demonstrative evidence does not require the State to establish the chain of custody

in sufficient detail to exclude all possibility of tampering. State v. Rubio, 2002-NMCA-007,

¶ 16, 131 N.M. 479, 39 P.3d 144 (citations omitted). Admission of evidence is within the

district court’s discretion and there is no abuse of discretion when the evidence is shown by

a preponderance of the evidence to be what it purports to be. Id.

{25} In this case, the record establishes the following chain of custody: (1) During a

search incident to arrest, Officer Crowe found a plastic “bindle” containing a white

crystalline substance which he recognized immediately as methamphetamine on Defendant’s

person; (2) Officer Crowe observed Officer Kinley perform a presumptive field test on the

substance; (3) Officer Crowe took the substance into evidence and transferred it to Wendell

Blair, the evidence technician who then sent it to the State laboratory; (4) James Mitkiff, an

analyst in the Drug Analysis Unit, obtained the evidence from the laboratory’s evidence

custodian; (5) Mr. Mitkiff performed two tests on the evidence and concluded it was

methamphetamine; (6) Mr. Mitkiff sealed the evidence so that it would be apparent if anyone

tried to tamper with or alter with it, and returned the evidence to the evidence custodian.

Based on this record, there is sufficient evidence to support the verdict that the substance

seized from Defendant was the same substance that was tested by the State laboratory and

determined to be methamphetamine. 

III. CONCLUSION

{26} For the foregoing reasons, Defendant’s conviction for possession of a dangerous drug

(Flexeril) without a prescription under Section 26-1-16(E) is vacated. Defendant’s

remaining convictions are affirmed. We remand to the district court for re-sentencing

consistent with this opinion. 

{27} IT IS SO ORDERED.

____________________________________

LINDA M. VANZI, Judge

WE CONCUR:

___________________________________

MICHAEL E. VIGIL, Judge
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___________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Rodriguez, No. 27,437

CL CRIMINAL LAW

CL-CL Controlled Substances

CL-ES Escape

CA CRIMINAL PROCEDURE

CA-DU Due Process

CA-DV Directed Verdict

CA-PA Probable Cause

CA-PJ Prejudice

EV EVIDENCE

EV-BT Blood/Breath Tests

EV-CC Chain of Custody

JD JURISDICTION

JD-MC Magistrate Court