### 1 Certiorari Denied, July 13, 2010, No. 32,441 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Opinion Number: 2010-NMCA-078 Filing Date: June 21, 2010 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 appeals his convictions for possession of cocaine and tampering with evidence. On May 14, 2009, we issued an opinion affirming the convictions, State v. Delgado , 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828. The Supreme Court granted a writ of certiorari, State v. Delgado , 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43, and

### 2 subsequently remanded this case to this Court after deciding issues related to the evidentiary issues in State v. Aragon , 2010-NMSC-008, ¶¶ 9, 32-33, 147 N.M. 474, 225 P.3d 1280. In that case, our Supreme Court held that (1) a forensic chemist’s report required the testimony of the forensic chemist who prepared it to be admissible in evidence and (2) testimony concerning the report by another forensic chemis t, when the testifying forensic chemist did not testify about his own opinions, violatedthe defendant’s right of confrontation. {2} On remand, we decided this case on our summary calendar in a memorandum opinion. Defendant has moved the Court, wit hout objection from the State, to publish the opinion in light of this Court’s May 14, 2009 published opinion. We grant the motion, withdraw the memorandum opinion issued May 12, 2010, and substitute this opinion in its stead. The facts of this case are fully set forth in the May 14, 2009 opinion. {3} After remand, we proposed in a summary calendar notice to reverse and remand to the district court for a new trial on the charges because of improperly admitted forensic evidence. We addressed sufficiency of the evidence as it would grant Defendant greater relief, but proposed to conclude that the evidence was sufficient. Both Defendant and the State timely responded to our proposal. Having considered the arguments, we reverse and remand for a new trial. {4} In our notice, in response to Defendant’s contention that the district court erred in admitting a forensic laboratory report prepared by Eric Young through the testimony of Danielle Elenbaas, a forensic chemist who did not conduct the tests underlying the report, we proposed to conclude that the report coul d not be admitted intoevidence without Mr. Young’s testimony to support it. See Aragon , 2010-NMSC-008, ¶ 19. We proposed to conclude that the testimony of Ms. Elenbaas about that report was likewise inadmissible. See id. ¶¶ 32-33. The State argues that the testimony of Ms. Elenbaas was sufficient to conclude that she reached an independent c onclusion based on her own review of the data and results. We disagree. Ms. Elenbaas’s testimony was similar to Mr. Young’s testimony in Aragon : an explanation regarding how the test was performed and approval of the testing chemist’s results. We find nothing in Ms. Elenbaas’s testimony indicating that she relied on her own analysis to arrive at her own conc lusion. Rather, she was simply explaining her approval of Mr. Young’s conclusion. It is notclear that she was stating her own opinion based on the underlying data and Mr. Young’s notes, but rather relaying Mr. Young’s opinion and stating her approval of it. We conclude that Ms. Elenbaas’s testimony regarding Mr. Young’s opinion that what he tested was cocaine was improperly admitted. {5} The State argues that, even if the report and testimony were improperly admitted, it was harmless error. The State argues that the error was harmless because there was other admissible evidence that the substance was cocaine. This evidence consisted of the testimony of a police detective who performed a fi eld test on the substance. This Court has previously held that the State must prove the sc ientific reliability of a drug field test in order for it to be admissible. State v. Morales , 2002-NMCA-052, ¶ 23, 132 N.M. 146, 45 P.3d 406. It does not appear th at there was such proof in this case. Thus, we cannot rely on a

### 3 field test of the substance to conclude that there was a disproportionate volume of permissible evidence to support a finding that th e substance was cocaine. We conclude that the erroneous admission of the forensic report and testimony was not harmless. {6} In our notice, we proposed to conclude that the evidence was sufficient to support the conviction. See State v. Santillanes , 109 N.M. 781, 782, 790 P.2d 1062, 1063 (Ct. App. 1990) (noting that this Court addresses substantial evidence issues because finding that the evidence was insufficient to support the convicti on would afford a defe ndant greater relief). Defendant’s response points us toevidence that is simply conflicting. It is for the jury to resolve the conflicts in the evidence. State v. Lucero , 2010-NMSC-011, ¶¶ 8, 18, 147 N.M. 747, 228 P.3d 1167. Further, our review is for sufficient evidence to support the conviction, not for whether the factfinder could have reached a different result. In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. We conclude that the evidence presented at the trial was sufficient for a reasonable jury to conclude that Defendant possessed cocaine and that he discarded it intending to prevent his prosecution for such possession. See State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (stating the standard of review for sufficien cy of the evidence). Thus, Defendant is not entitled to dismissal of the charges, but rather remand for a new trial. {7} For the reasons stated herein and in the third notice of proposed disposition, we reverse the convictions and remand for a new trial. {8} IT IS SO ORDERED.

____________________________________ JAMES J. WECHSLER, Judge WE CONCUR:

____________________________________ CYNTHIA A. FRY, Chief Judge

____________________________________ LINDA M. VANZI, Judge Topic Index for State v. Delgado , Docket No. 27,192 AE APPEAL AND ERROR AE-RM Remand CL CRIMINAL LAW CL-CL Controlled Substances CT CONSTITUTIONAL LAW

### 4 CT-RF Right to Confrontation EV EVIDENCE EV-AT Authentication of Evidence EV-AV Availability of Witness EV-SC Scientific Evidence & Daubert Standard EV-SS Substantial or Sufficient Evidence