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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO.33,928 4 RUDY VALLEJOS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Mary Barket, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Judge. 17 {1} Defendant appeals his convi ction for felony driving while under the influence 18 (DWI). We issued a notice of proposed di sposition proposing to affirm, and Defendant 192 has responded with a moti on to amend the docketing statement and a memorandum 1 in opposition. We have carefully considered the arguments raised by Defendant but 2 remain convinced that affirmance is the appropriate result in this case. Therefore, for 3 the reasons stated in this Opinion and inthe notice of proposed disposition, we deny 4 the motion to amend the docketing statemen t and affirm Defendant’s conviction. 5 Motion to Amend 6 {2} Defendant contends the district court erred in admitting into evidence a lab 7 report containing evidence of Defendant’s blood-alcohol content (BAC). In his 8 docketing statement, Defendant objected to the district court’s admission of the lab 9 report on foundational grounds and cited no C onfrontation Clause cases as supporting 10 authority for his argument against admission of the report. [DS 5-6] We proposed to 11 reject Defendant’s lack-of-foundation argument and to affirm the district court’s 12 admission of the evidence. Now Defendant moves to amend his docketing statement 13 to include a Confrontation Clause argument. This argument is ba sed on the fact that 14 a lab analyst conducted the test of Defe ndant’s blood and prepared a draft report 15 containing the results of the testing, but th e report was reviewed and finalized by a lab 16 supervisor who did not testify at trial. Defendant contends th e report should not have 17 been admitted into evidence because the supervisor was not available for cross18 examination. For purposes of this Opinion, we accept trial counsel’s belief that she 193 preserved this issue at trial by referring to the Confrontation Clause during her 1 argument, although counsel is not entirely certain on that point. [MIO 5] 2 {3} Defendant’s argument is not viable becau se, for Confrontation Clause purposes, 3 the testimonial evidence that was admitted at trial was not the report itself but the 4 information contained in the report—Defe ndant’s BAC results as revealed by the 5 testing performed by the analyst. See State v. Huettl , 2013-NMCA-038, ¶ 37, 305 P.3d 6 956 (pointing out that testimony that is based upon a non-testifying analyst’s 7 conclusions and analysis is “clearly im permissible” under the Confrontation Clause) ; 8 see also Bullcoming v. New Mexico , ___ U.S. ___, 131 S.Ct. 2705, 2715-16 (2011) 9 (holding that, to satisfy Confrontation Cl ause, the analyst who performed the blood10 alcohol analysis must testify and be available for cross-examination concerning the 11 testing process employed by the analyst). In fact, if the supervisor had been offered 12 as a witness in this case, it would havebeen proper to reject his testimony on 13 Confrontation Clause grounds, because there is no indication that he independently 14 tested Defendant’s blood or arrived at independent conclusions th at were based on raw 15 data generated by the analyst. See Bullcoming , ___ U.S. ___, 131 S. Ct. at 2716 16 (rejecting the New Mexico Supreme Court’ s holding that a lab supervisor could 17 constitutionally testify as to the results of tests performed by a different analyst and 18 noting that the state did not assert that the supervisor had any independent opinion 194 about the defendant’s BAC); Huettl , 2013-NMCA-038, ¶¶ 36-37 (holding that, while 1 an expert may testify as to her own opinion based on raw data generated by a non2 testifying analyst, the expert may not testify about the contents of a report that is based 3 on testing performed by a non-testifying analyst). 4 {4} In this case the analyst who performed the testing of Defendant’s blood 5 appeared as a witness and was available fo r cross-examination. The analyst testified 6 that he broke the seal on the blood container and performed the test and then prepared 7 a report showing the results of the test. [M IO 5-6] That report was then reviewed by 8 the supervisor, who finalized the report. [Id.] It is clear that, according to the 9 information contained in the docketing statement and motion to amend, the supervisor 10 performed no independent testing of the blood and reached no independent 11 conclusions concerning the results of the te sting. For that reason, the Confrontation 12 Clause did not require that the supervisor te stify in order to make the report admissible 13 at trial; instead, the analyst was properly allowed to testify about the substantive 14 contents of the report, including the tests heperformed and the results of those tests. 15 {5} We note that Defendant suggests that the lab report may have constituted a 16 “separate accusation” by the supervisor becau se it may have “reflected his review of 17 the data.” [MIO 9] However, there is nothi ng in the docketing statement or in the tape 18 log from the trial that indicates this was the case. [DS passim ; RP 118-19] As we 19 pointed out above and in the notice of propos ed disposition, the analyst testified that 205 he performed the testing and prepared the report setting out the results of the test, 1 which was then reviewed by the supervisor. We have been provided no evidentiary 2 support for an assertion that the supervisor performed any independent analysis at all, 3 either of Defendant’s blood or of the results of the testing of that blood. In sum, the 4 report signed by the supervisor merely reflected his review of the analyst’s draft 5 report, not an independent accusation of De fendant and was therefore not subject to 6 the restrictions of the Confrontation Clause. Cf. Bullcoming , ___ U.S. ___, 131 S. Ct. 7 at 2716; Huettl , 2013-NMCA-038, ¶¶ 36-37. 8 {6} Since the issue Defendant attempts to raise is not viable, we deny his motion 9 to amend the docketing statement. See State v. Sommer , 1994-NMCA-070, ¶ 11, 118 10 N.M. 58, 878 P.2d 1007 (denying the defendant’s motion to amend the docketing 11 statement because the argument offered insupport of the motion was not viable). 12 Memorandum in Opposition 13 {7} Defendant again argues that the State failed to lay a sufficient evidentiary 14 foundation for the admission of the lab report. As we discussed in the notice, the lab 15 report is considered a business record, and the analyst who created the substance of 16 the report was qualified to authenticate the report for purposes of the Rules of 17 Evidence. See State v. Nez , 2010-NMCA-092, ¶¶ 3, 14, 148 N.M. 914, 242 P.3d 481; 18 Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 24, 142 N.M. 59, 162 P.3d 896. We 19 therefore affirm on this issue. 206 {8} Defendant also repeats his argument th at the analyst should not have been 1 allowed to testify because he was not disc losed as a witness un til eight days before 2 trial. Defendant maintains that trial couns el did not have an adequate opportunity to 3 research the analyst’s background or investigate his assertions about the testing he 4 performed or the test results because the di strict court’s cure for the late disclosure 5 was simply to allow counsel to interview the analyst briefly before he testified. 6 Defendant acknowledges that a district court’s ruling concerning late disclosure of 7 evidence is reviewed only for an abuse of discretion. State v. Duarte , 2007-NMCA8 012, ¶ 14, 140 N.M. 930, 149 P.3d 1027. No suchabuse has been demonstrated here. 9 Defendant can offer only vagueassertions concerning his inability to investigate the 10 analyst’s background and the testing methods employed by the analyst. These 11 assertions, lacking any concrete information about what Defendant believed he could 12 discover if he had more time toinvestigate the analyst, are insufficient to establish that 13 Defendant was prejudiced by the late disclosure of the anal yst as a witness. We affirm 14 the district court’s decision allowing the analyst to testify at trial. 15 {9} Defendant’s final argument repeats his claim that he received ineffective 16 assistance of counsel because trial couns el successfully excluded evidence of the 17 existence of Defendant’s intoxilyzer devi ce from the trial and advised Defendant not 18 to testify. In addition, Defendant argues thatif trial counsel did not preserve for appeal 197 the Confrontation Clause issue discusse d above, then that failure constituted 1 ineffective assistance. 2 {10} As to the last claim, we have assume d that the Confrontation Clause argument 3 was preserved and have found it to be without merit. Therefore, even if it was not 4 preserved, Defendant was not prejudiced by trial counsel’s purporte d failure to raise 5 the meritless argument, and as a result did not receive in effective assistance from his 6 attorney. See State v. Chandler , 1995-NMCA-033, ¶ 35, 119 N.M. 727, 895 P.2d 249 7 (stating that it is not ineffective assistance of counsel to fail to make a motion that 8 lacks merit). 9 {11} With respect to the intoxilyzer argument, an obvious tactical reason exists for 10 trial counsel’s actions—preventing the juryfrom learning that Defendant had a prior 11 conviction or convictions fo r DWI. Therefore, these actions, without more, do not 12 establish ineffectiveness. See State v. Ortega , 2014-NMSC-017, ¶ 55, 327 P.3d 1076 13 (holding that a prima facie case of ineffe ctive assistance of counsel does not exist 14 where there is a plausible, rational strategy explaining the attorney’s actions). 15 {12} Finally, Defendant recognizes that his claim concerning trial counsel’s advice 16 that he not testify depends on facts that are not of record. [MIO 18] He asks that the 17 case be remanded for an evidentiary hearing or that we note that he may raise this 18 issue in post-conviction proceedings. We decline the request to remand because 19 Defendant has not established a prima facie showing of ineffective assistance; again, 208 a plausible trial strategy (preventing De fendant from possibly being cross-examined 1 about his prior DWI convictions) ex isted for trial counsel’s actions. See id. ; State v. 2 Arrendondo , 2012-NMSC-013, ¶ 38, 278 P.3d 517 (holding that a case will be 3 remanded for an evidentiary hearing only wh ere a prima facie show ing of ineffective 4 assistance has been made on appeal). Defendant remains free to attempt to raise this 5 issue in any post-conviction proceedi ngs he may be eligible to file. See Arrendondo , 6 2012-NMSC-013, ¶ 44 (raising ineffective a ssistance claim on direct appeal does not 7 preclude defendant from subsequently pur suing habeas corpus action where more 8 facts can be developed). 9 {13} Based on the foregoing, we affirm Defendant’s felony DWI conviction. 10 {14} IT IS SO ORDERED. 11

__________________________________ 12 LINDA M. VANZI, Judge 13

WE CONCUR: 14

_________________________________ 15 MICHAEL E. VIGIL, Chief Judge 16

_________________________________ 17 JAMES J. WECHSLER, Judge 18