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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: __________

Filing Date: June 27, 2013

Docket No. 33,021

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

HECTOR FLORES SERNA, JR.,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

Fernando R. Macias, District Judge

Bennett J. Baur, Acting Chief Public Defender

William A. O’Connell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Gary K. King, Attorney General

Yvonne Marie Chicoine, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

BOSSON, Justice.

{1} In a prosecution for trafficking imitation controlled substances—in this case baking

soda packaged to look like cocaine—the New Mexico Imitation Controlled Substances Act

allows the jury to consider evidence of any prior criminal convictions of the accused “related

to controlled substances or fraud.” See NMSA 1978, § 30-31A-2(D)(5) (1983). On the

other hand, our Rules of Evidence conscientiously restrict any evidentiary use of prior bad

acts including criminal convictions. See 11-404(B) NMRA; 11-403 NMRA. To avoid any

conflict, we apply the state statute harmoniously with our Rules of Evidence. We hold that
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any evidence of prior convictions referred to by statute must also be admissible under our

evidence rules.

{2} Because the prior criminal convictions in this case do not satisfy Rule 404(B), we

conclude that their admission into evidence was in error. After careful examination of the

record, however, we acknowledge that the error was harmless and affirm the convictions.

Agreeing with Defendant on one point of sentencing error, we remand to the district court

for an amended sentence as set forth in this opinion.

BACKGROUND

{3} According to the testimony of Virginia Sanchez—the only eyewitness—she and the

man she considered to be her husband, George Vargas, spent July 4, 2009, watching

fireworks, grilling steaks, and getting high. At some point in the day, the two ran out of

drugs and made some phone calls in an attempt to get more. Later that night, after Sanchez

had already gone to bed, Hector “Loco” Flores Serna, Jr., the Defendant in this case,

knocked on her door to sell them an eight ball of cocaine.

{4} Vargas got up to answer the door, and Sanchez reached the living room just in time

to witness the drug deal. She saw Vargas handing Defendant money—$120—and Defendant

was holding a plastic bag. Sanchez decided to test the substance in the bag, so she got some

scissors, cut a small hole in the bag, and tasted the white powdery substance. It was baking

soda, not cocaine.

{5} According to Sanchez, “[t]hen all hell broke loose.” Defendant accused Sanchez and

Vargas of switching the bag. Defendant told them that he had just bought it from a friend

for $200, even though he was selling it to them for only $120, “and that his friend wouldn’t

do that to him.”

{6} Defendant then pulled out a gun and waived it at them. The two urged Defendant to

leave, but he kept getting more and more agitated. Then, according to Sanchez, as

Defendant walked toward the door, he shot Vargas in the head, a wound which proved fatal.

At trial, Sanchez testified as an eyewitness to these events, and the jury also heard a

contemporaneous 911 call in which Sanchez identified Defendant as the assailant.

{7} Defendant was charged with various crimes, including first-degree murder and

trafficking an imitation controlled substance—the baking soda packaged to look like

cocaine—a fourth-degree felony. See NMSA 1978, §§ 30-31A-1 to -15 (1983) (as amended

through 2002) (Imitation Controlled Substances Act hereafter ICSA). Before trial, the State

filed a motion to allow testimony about two of Defendant’s prior criminal convictions, one

for possession of a controlled substance (methamphetamine) and the second for credit card

fraud. The State based its argument on a specific provision in the ICSA that authorizes the

jury to consider evidence of prior convictions related to “controlled substances or fraud.”

Section 30-31A-2(D)(5). Although expressing doubts about the admissibility of these prior
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convictions, the trial court ultimately allowed the evidence based upon the specific language

in the ICSA.

{8} After a jury trial, Defendant was convicted of first-degree murder and distribution

of an imitation controlled substance, as well as other charges not related to this appeal. In

considering the charge of first-degree murder, the jury was instructed on theories of both

willful and deliberate murder and felony murder, the predicate felony being distribution of

an imitation controlled substance. The jury returned a general verdict of guilty on firstdegree murder and, therefore, distribution of an imitation controlled substance was correctly

vacated as a separate, stand-alone conviction, though it remained as the predicate for felony

murder. In addition to the base life sentence for first-degree murder, Defendant’s sentence

was enhanced by four years pursuant to the habitual offender statute, NMSA 1978, Section

31-18-17 (2003), as well as an additional one year based on the firearm enhancement statute,

NMSA 1978, Section 31-18-16 (1993).

{9} Given his first-degree murder conviction and resulting life sentence, Defendant filed

a direct appeal to this Court in which he raises two issues. See N.M. Const. art. VI, § 2

(providing for direct appeal from life sentences). First, Defendant claims that testimony

about his prior unrelated convictions was not admissible under the New Mexico rules of

evidence, which constitutes reversible error and entitles him to a new trial. Second,

Defendant claims that the enhancements to his life sentence, for being a habitual offender

and for the use of a firearm, are not authorized in capital cases. We consider these two

appellate issues in the order raised.

DISCUSSION

The Imitation Controlled Substances Act

{10} The ICSA renders criminal what ordinarily would be a lawful act—in this case the

sale of baking soda packaged as cocaine. The ICSA is directed towards circumstances in

which a normally innocuous substance becomes a proxy for an illegal controlled substance,

cocaine in this instance. See Section 30-31A-2(D). Specifically, the ICSA defines an

imitation controlled substance as “a substance that is not a controlled substance which by

dosage unit appearance, including color, shape, size and markings and by representations

made would lead a reasonable person to believe that the substance is a controlled substance.”

Id.

{11} In addition to this definition, the ICSA also lists “factors” that the fact finder “may

consider” which include the following:

(1) statements made by an owner or by anyone else in control of the

substance concerning the nature of the substance or its use or effect;

(2) statements made to the recipient that the substance may be resold
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for inordinate profit;

(3) whether the substance is packaged in a manner normally used for

illicit controlled substances;

(4) evasive tactics or actions utilized by the owner or person in

control of the substance to avoid detection by law enforcement authorities;

(5) prior convictions, if any, of the owner or anyone in control of the

object, under state or federal law related to controlled substances or fraud;

and

(6) whether the physical appearance of the substance is substantially

identical to a controlled substance.

Id. (emphasis added).

{12} Adding to the confusion in this case, the trial court noted the absence of any uniform

jury instruction for a violation of the ICSA. After due deliberation, the trial court felt

compelled to include “all of the elements that can be considered” in its instruction given to

the jury, including all of Section 30-31A-2(D)(1)-(5). Thus, over objection of counsel, the

court allowed testimony about Defendant’s two prior convictions, albeit with a jury

instruction limiting consideration of those convictions to the ICSA charge, not murder. On

appeal, Defendant challenges the admissibility of that testimony about his prior criminal

convictions and asks for a new trial as a result.

Prior Convictions May Be Admitted Only When Permitted by the Rules of Evidence

{13} Defendant has argued throughout these proceedings that the Legislature cannot

override by statute what this Court has promulgated by rule. We agree, and observe that the

law has been settled on this subject for some time. See State v. Belanger, 2009-NMSC-025,

¶ 17, 146 N.M. 357, 210 P.3d 783 (noting that this Court has the ultimate rule-making

authority).

{14} Since Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 311, 551 P.2d 1354,

1358 (1976), it has been clear that the ultimate rule making authority over procedure resides

in this Court, including the rules of evidence. This Court’s plenary authority to regulate

procedure stems from our constitutional power of “superintending control over all inferior

courts.” See N.M. Const. art. VI, § 3; Belanger, 2009-NMSC-025, ¶ 17. We have

previously acknowledged that our judicial authority “is not necessarily exclusive, and may

co-exist with harmonious legislative enactments.” See Belanger, 2009-NMSC-025, ¶ 17

(citing Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶¶ 5-9, 138 N.M. 398,

120 P.3d 820). The pivotal question is whether legislative initiatives are truly “harmonious”

with our evidentiary rules.
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{15} In this case, such a harmonious reading means that evidence offered under the ICSA,

such as these prior criminal convictions, would also have to be admissible under our rules

of evidence, or more precisely, would not be excluded under our rules of evidence. See

Rules 11-401, 11-404(B), and 11-403 NMRA. If the convictions would be admissible under

our rules of evidence, then Section 30-31A-2(D)(5) instructs the court to inform the jury of

the relevance of those prior convictions if they relate to controlled substances or fraud. The

controlling question, therefore, is whether Defendant’s prior convictions were properly

admitted under our rules of evidence, and particularly Rule 11-404(B), without regard to the

language in the ICSA.

{16} Evidence of prior bad acts, including prior convictions, may be admitted in certain

instances, under Rule 11-404(B) which reads:

(1) Prohibited uses. Evidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.

(2) Permitted uses; notice in a criminal case. This evidence [of

a crime] may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident. In a criminal case, the prosecution must

(a) provide reasonable notice of the general nature of any

such evidence that the prosecutor intends to offer at trial, and

(b) do so before trial – or during trial if the court, for good

cause, excuses lack of pretrial notice. 

(Emphasis added.) Rule 11-404(B) makes clear that evidence of prior convictions is not

permitted to prove propensity—that the accused is of bad character and thus more likely to

have committed the crimes presently charged. 

{17} The procedure for admitting evidence under Rule 11-404(B) “requires counsel to

identify the consequential fact to which the proffered evidence of other acts is directed.”

State v. Lucero, 114 N.M. 489, 492, 840 P.2d 1255, 1258 (Ct. App. 1992). “The proponent

of the evidence must demonstrate its relevancy to the consequential facts, and the material

issue, such as intent, must in fact be in dispute.” State v. Elinski, 1997-NMCA-117, ¶ 13,

124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v. Tollardo, 2012-

NMSC-008, 275 P.3d 110. “Evidence of other crimes than the one charged must however

have a real probative value, and not just possible worth on issues of intent, motive, absence

of mistake or accident, or to establish a scheme or plan.” State v. Mason, 79 N.M. 663, 667,

448 P.2d 175, 179 (Ct. App. 1968) (internal quotation marks and citation omitted). As this

Court recently stated in State v. Gallegos,
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Part of the proponent’s responsibility is also to cogently inform the

court—whether the trial court or a court on appeal—the rationale for

admitting the evidence to prove something other than propensity. In other

words, more is required to sustain a ruling admitting [other-acts] evidence

than the incantation of the illustrative exceptions contained in the Rule.

2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828 (alteration in original) (internal

quotation marks and citation omitted). Once “it is shown that evidence of other acts has a

legitimate alternative use that does not depend upon an inference of propensity, the

proponent must establish that under Rule 11-403 NMRA, the probative value of the evidence

used for a legitimate, non-propensity purpose outweighs any unfair prejudice to the

defendant.” State v. Kerby, 2005-NMCA-106, ¶ 25, 138 N.M. 232, 118 P.3d 740.

{18} In spite of this clearly established protocol for admitting prior convictions under Rule

11-404(B), the State chose another path, electing to rely almost exclusively on Section 30-

31A-2(D)(5), as if the ICSA were a font of evidentiary authority independent of this Court.

Preferring to stand alone on the ICSA, the State omitted Rule 11-404(B) from its written,

pretrial motion to have the prior convictions admitted at trial. During a hearing on the

motion, the State made a passing reference to the enumerated list in Rule 11-404(B),

suggesting that the evidence “specifically could go to intent or knowledge.” The State

argued that the prior possession conviction showed that Defendant knew what was and was

not cocaine, notwithstanding the obvious difference being that Defendant had been

previously convicted of methamphetamine possession, not cocaine. The State had nothing

relevant to say about the prior fraud conviction other than it might go to “intent.”

{19} This hardly survives scrutiny under our case law. Falling short of any effort to

“inform the court,” whether “cogently” or otherwise, of any true relevance to this particular

case, the State did little more than offer “an incantation of the illustrative exceptions

contained in the Rule,” a shortcoming we warned against in Gallegos. And even now on

appeal we are left to ponder what possible relevance these prior convictions could have had

in this instance, other than, of course, their specific enumeration in the ICSA, but not in Rule

11-404(B).

{20} Defendant’s intent was not at issue in the ICSA prosecution; he was not claiming an

innocent mistake or lack of knowledge about illicit drugs. Under our case law, the question

of intent or knowledge “must in fact be in dispute.” His defense went more to the heart of

the prosecution’s case: that it never happened at all, that he was never there, and that the

witness Sanchez, an admitted drug user, made it all up. The State’s “incantation” of intent

and knowledge misses the mark.

{21} Far from proving a relevant point under Rule 11-404 (B), these prior convictions

went solely to propensity, painting Defendant as a bad character from the drug world.

Bearing no legitimacy under our rules, these convictions were inadmissible at trial,

something the trial court duly recognized under our rules of evidence but was distracted by
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the confusing, inconsistent, and discordant language of the ICSA. Clearly, admission of this

prior-crimes testimony was in error. The question now turns, therefore, on the effect of the

trial court’s error, and specifically whether it requires us to reverse these convictions and

remand for a new trial.

Harmless Error

{22} We review improperly admitted evidence for non-constitutional harmless error. State

v. Branch, 2010-NMSC-042, ¶ 15, 148 N.M. 601, 241 P.3d 602, overruled on other grounds

by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. “[N]on-constitutional error is

harmless when there is no reasonable probability the error affected the verdict.” State v.

Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (internal quotation marks and citation

omitted).

{23} When assessing the probable effect of evidentiary error, “courts should evaluate all

of the circumstances surrounding the error.” Id. ¶ 43. This includes the source of the error,

the emphasis placed on the error, evidence of the defendant’s guilt apart from the error, the

importance of the erroneously admitted evidence to the prosecution’s case, and whether the

erroneously admitted evidence was merely cumulative. Id. These considerations, however,

are not exclusive, and they are merely a guide to facilitate the ultimate

determination—whether there is a reasonable probability that the error contributed to the

verdict. See id. We proceed to that analysis.

{24} Here, the erroneous evidence of Defendant’s prior convictions was admitted through

the testimony of Detective Rudy Sanchez. Detective Sanchez was asked whether, in the

course of his investigation, he found documentation of Defendant’s prior convictions. The

Detective responded that he had learned about Defendant’s prior convictions for possession

of a controlled substance, methamphetamine, and for credit card fraud. Documentation of

the prior convictions was not admitted into evidence, and Defendant did not testify. Thus,

this testimony was the only source through which the jury learned of Defendant’s criminal

record.

{25} Importantly, our review of the record shows that neither side placed much emphasis

on the erroneously admitted evidence during trial. Immediately after hearing from Detective

Sanchez, the jury was given a limiting instruction, informing them that they were to consider

the evidence for the sole purpose of determining whether Defendant “committed the offense

of distribution of an imitation controlled substance but for no other purpose.” Defendant did

not inquire into this testimony on cross examination, nor was it mentioned on redirect. The

prior convictions were not mentioned again until the State’s closing argument, during which

the State briefly reminded the jury about the convictions when explaining the jury

instructions. The State told the jury that it could consider “[w]hether the person has prior

convictions for controlled substances or fraud. In this case the defendant has both.” Nothing

further was said. We can conclude, therefore, that the State did not exploit the erroneously

admitted evidence at trial, nor did it make the evidence a significant part of its case against
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Defendant. Given the abundance of other evidence against Defendant, the State simply did

not need to do so.

{26} The evidence of Defendant’s guilt was substantial, such that the jury likely did not

rely on these two prior convictions when reaching its verdict. Sanchez, the sole eyewitness,

identified Defendant as the one who shot Vargas. She gave a detailed account of how she

and Vargas called Defendant to purchase more drugs, how Defendant came to the house late

at night and became very agitated when she discovered that the baggie was filled with baking

soda. She recounted how Defendant pulled a gun and shot Vargas. In court, Sanchez again

identified Defendant as the shooter.

{27} In addition, the jury heard the tape of Ms. Sanchez’s 911 call, in which she identified

Defendant as the one who had shot Vargas. During closing, the State reminded the jury of

what they had heard on the 911 tape.

{28} Further corroborating Sanchez’s eyewitness testimony, physical evidence found at

the scene linked Defendant to the crime. Similar .22 caliber shell casings were found both

at the scene of the homicide and at Defendant’s home. A ballistics expert testified that the

shell casings were fired from the same gun. Although the gun used in the shooting was

never found, a witness attending a Fourth of July party at Defendant’s neighbor’s house

stated that she heard numerous gunshots coming from Defendant’s house on the day of the

shooting.

{29} Ironically, these prior convictions were largely unnecessary to the State’s case.

Sergeant Ralph Monget testified to being one of the first officers on the scene of the

shooting. Inside the residence, he saw “a plastic baggy with what [he] believed was

narcotics on a table in the front room.” Based on his training and experience, whatever was

in the baggie was packaged like narcotics. He explained to the jury that the baggie

“appeared to be cocaine . . . because it was a white powdery substance inside of a plastic

baggy tied off at the tip” which is “consistent with the way cocaine is typically packaged for

resale.” Thus, the jury heard specific and uncontradicted evidence that the bag of baking

soda was made to appear to be cocaine, compelling evidence for a conviction under the

ICSA.

{30} Also important, Defendant never challenged the assertion that the baggie contained

an imitation controlled substance. As Defendant argues, “there was no dispute in the present

case that the 7.14 grams of baking soda was meant to represent cocaine.” Rather,

Defendant’s primary defense was that Ms. Sanchez was not credible and was making up the

whole story. Thus, we agree with Defendant’s argument that “[e]ither [Sanchez] was telling

the truth, and described a drug deal, or she was lying, and fabricated a drug deal. In either

case, however, the baggie of baking soda was a prop, unmistakably meant to appear to be

cocaine.” As Defendant wryly observes, he, Vargas, and Sanchez “were obviously not

setting out to make biscuits that night.”
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{31} Perhaps of greatest significance, the evidence of prior criminal convictions appears

to be cumulative. If the State wanted the prior convictions to prove Defendant’s intent and

knowledge of drugs and the drug trade—and his resulting bad character—other evidence had

already established this at trial. Sanchez testified that Defendant was “one of the people that

we would buy [drugs] from.” She further explained that when she bought drugs from

Defendant “[h]e usually delivered it.” None of this testimony was challenged at trial. By the

time the State introduced evidence of Defendant’s prior convictions, the prosecution had

already established Defendant’s knowledge of the drug trade, and his bad, drug-dealing

character. In the context of this particular case, therefore, it is difficult to see how

Defendant, the drug user, could be any more damning than Defendant, the drug dealer.

{32} In light of all the circumstances, therefore, we conclude that reference to these prior

convictions, though error, was harmless. Under the standard for nonconstitutional error, the

State satisfies us that “there is no reasonable probability” that evidence of Defendant’s prior

convictions affected this verdict and contributed to Defendant’s convictions.

Enhancement of Defendant’s Life Sentence Was Not Authorized by Law

{33} Defendant argues, and the State agrees, that the sentencing enhancements applied to

Defendant’s life sentence were unlawful. Defendant received sentencing enhancements for

being a habitual offender, under Section 31-18-17, and for the use of a firearm in the

commission of the offense, under Section 31-18-16. Each of these enhancements, by their

own terms, only apply to noncapital felonies. See Section 31-18-17(A) (“A person

convicted of a noncapital felony . . . .” (emphasis added)); Section 31-18-16(A) (“When a

separate finding of fact by the court or jury shows that a firearm was used in the commission

of a noncapital felony . . . .” (emphasis added)). Yet Defendant’s sentence for murder, a

capital felony, NMSA 1978, Section 30-2-1 (1994), was enhanced under each of these

statutes.

{34} While defense counsel inexplicably did not object to the enhancements, “[a] trial

court does not have jurisdiction to impose an illegal sentence on a defendant and, therefore,

any party may challenge an illegal sentence for the first time on appeal.” State v. Paiz, 2011-

NMSC-008, ¶ 33, 149 N.M. 412, 249 P.3d 1235. Therefore, we agree with Defendant, as

appropriately conceded by the State, that his sentence was improperly enhanced, and we

remand to the trial court to correct the sentencing error.

CONCLUSION

{35} We affirm Defendant’s convictions and remand for the trial court to correct the

sentencing error.

{36} IT IS SO ORDERED.

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RICHARD C. BOSSON, Justice 

WE CONCUR:

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PETRA JIMENEZ MAES, Chief Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

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CHARLES W. DANIELS, Justice

____________________________________

BARBARA J. VIGIL, Justice