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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,304 9 BRYAN LEFEBRE, 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 M. Victoria Wilson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 B. Douglas Wood III, Assi stant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 242 Defendant appeals from an order of c onditional discharge entered after a jury 1 found him guilty of possession of methamphe tamine. We issued a calendar notice 2 proposing to reverse on a sentencing issue and affirm on all other issues. Defendant 3 has responded with a memorandum in opposition. [Ct. App. file] The State has filed 4 a response indicating that it agrees with our calendar notice. 5 SUFFICIENCY OF THE EVIDENCE 6 Defendant raised two issues challenging the sufficiency of the evidence to 7 support the jury verdict. [MIO 6; DS 6] A sufficiency of the evidence review 8 involves a two-step process. Initially, th e evidence is viewedin the light most 9 favorable to the verdict. Then the appellatecourt must make a legal determination of 10 “whether the evidence viewedin this manner could jus tify a finding by any rational 11 trier of fact that each element of the crime charged has been established beyond a 12 reasonable doubt.” State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) 13 (internal quotation marks and citation omitted). 14 In order to support the jury’s verdict, the evidence had to show that Defendant 15 knowingly had methamphetami ne in his possession. [RP 70] In his docketing 16 statement, although Defendant stated that hewas raising a sufficiency challenge, his 17 specific claims appeared to challenge th e admissibility of evidence. [DS 6] For 18 purposes of a sufficiency review, this Court considers even improperly admitted 193 evidence. See State v. Post , 109 N.M. 177, 181, 783 P.2d 487, 491 (Ct. App. 1989) 1 (“If all of the evidence, including the wrongfu lly admitted evidence, is sufficient, then 2 retrial following appeal is not barred [by the Double Jeopardy Clause].”). 3 Defendant’s first claim was one of hearsay, in that Officer Darby testified that 4 Officer Griego gave him a baggie and to ld him that he ha d found it on Defendant 5 during a search. [DS 2, 6] The court gave the jury a limiting instruction on this 6 testimony. [DS 2] Even if it had not, we do not deem this to be reversible error 7 because Officer Griego himself thereafter te stified that he had given the baggie to 8 Officer Darby. [DS 3] See State v. Varela , 1999-NMSC-045, ¶ 37, 128 N.M. 454, 9 993 P.2d 1280 (observing that improperly admitted cumulative evidence does not 10 warrant reversal). To the extent that De fendant is challenging the specificity of the 11 officers’ recollections concerning the transf er and the content of the baggie [MIO 8], 12 we believe that this was a matter to be considered exclusively by the factfinder. See 13 State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that 14 it is for the factfinder to resolve any conf lict in the testimony of the witnesses and to 15 determine where the weight and credibility lay). 16 Defendant also appears to raise a chai n of custody challenge. Both officers 17 testified to the basic fact that a baggi e had been discovered on Defendant’s person. 18 [MIO 8-9] We believe that the district court acted within its discretion in admitting 194 this evidence because it could rely on the credibility of the testimony, and it could 1 reject any break in the chain of custody as speculative. See State v. Peters , 2 1997-NMCA-084, ¶ 26, 123 N.M. 667, 944 P. 2d 896 (noting abuse of discretion 3 standard and rule that the prosecution does not have to preclude all possibilities of any 4 break in the chain of custody). Finally, webelieve that any challenge to the memory 5 of the lab technician with respect to testi ng went to the credibility of her testimony and 6 not to admissibility, particularly since there does not appear to be any dispute that she 7 was the individual who compiled the report. [MIO 9-11] She also stated that she 8 trusted that the gas chromatograph was calibrated and in working order. [MIO 6] 9 MISTRIAL 10 Defendant continues to claim that the district court should have declared a 11 mistrial after a document was presented that indicated the testing was being conducted 12 for drug trafficking prosecution. [MIO 11] The district court’s ruling on a motion for 13 a mistrial is addressed to the sound discretion of the court and will not be disturbed 14 absent a showing of abuse of discretion. State v. Fry , 2006-NMSC-001, ¶ 52, 138 15 N.M. 700, 126 P.3d 516 (filed 2005); State v. McDonald , 1998-NMSC-034, ¶ 26, 126 16 N.M. 44, 966 P.2d 752. 17 The district court instructed the jury that it should disregard the notation on the 18 document. [RP 52; MIO 5] In light of the fact th at the document had already 195 appeared before the jury, this remedy wa s more effective than the alternative 1 requested by Defendant—that the notation be removed after it already appeared before 2 the jury. [DS 4] See State v. Simonson , 100 N.M. 297, 301, 669 P.2d 1092, 1096 3 (1983) (“The overwhelming New Mexico case law states that the prompt sustaining 4 of the objection and an admonition to disreg ard the answer cures any prejudicial effect 5 of inadmissible [evidence].”). Defendant would like us to consider whether there was 6 any reasonable possibility that the notation c ould have induced the jury verdict. [MIO 7 12] This is the analysis that applies where inadmissible evid ence is intentionally 8 elicited by the prosecution. See State v. Gonzales , 2000-NMSC-028, ¶ 39, 129 N.M. 9 556, 11 P.3d 131. In this case, however, there is no showing that the prosecution 10 knew that the notation was on the report [MIO 4-5]; to the extent that the prosecution 11 had such knowledge, we believe that the district court was in a better position to make 12 this determination. To impute constructive knowledge onto the prosecution as a 13 matter of law would take Gonzales beyond its intended purpose—to punish the 14 prosecution for wilful misconduct. 15 WITNESS EXCLUSION 16 Defendant next argues that the districtcourt erred in permitting Agent Verhulst 17 to be recalled for further testimony. [M IO 13] Defendant had invoked Rule 11-615 18 NMRA, and Agent Verhulst had remain ed in the courtroom during the lab 196 technician’s testimony. [MIO 5] Permitti ng a witness to retake the stand under these 1 circumstances is a matter within the discretion of the district court. See State v. 2 Kijowski , 85 N.M. 549, 550, 514 P.2d 306, 307 (Ct. App. 1973). It appears that Agent 3 Verhulst testified about why the report had a notation referring to trafficking, where 4 he indicated that he had made a mistake. [RP 51, 10:33:00] Given this limited 5 testimony, we do not be lieve that it was an abuse of discretion to recall him. See 6 Simonson , 100 N.M. at 301, 669 P.2d at 1096 (rejecting a Rule 11-615 challenge 7 where the witness was an expert and not a witness to the crime). 8 SENTENCE 9 Defendant has argued that the district court impermissibly sentenced him to a 10 probationary term that exceeded the statutory maximum. [DS 7] The district court 11 issued an order of conditional discharge pursuant to NMSA 1978, Section 12 31-20-13(A) (1994), which provides that where a defendant is found guilty of a 13 first-time felony for which a deferred or susp ended sentence is statutorily authorized, 14 the court may, “without entering an adjudication of guilt, enter a conditional discharge 15 order and place the person on probation on terms and conditions authorized by 16 [NMSA 1978, Section 31-20-5 (2003) and NMSA 1978, Section 31-20-6 (2007)].” 17 Defendant has stated that the finding of guilt in this case related to a first conviction 18 for narcotics possession [DS 7], and the State has not disagreed with this statement. 197 Sentencing for a conditional discharge based on a first narcotics offense is 1 governed by NMSA 1978, Section 30-31- 28(A) (1972), which provides for a 2 probationary term “not to exceed one year.” Here, Defendant received a probationary 3 term of eighteen months. [RP 92] Acco rdingly, we believethat Defendant’s 4 probationary term was not in accordance with this statute. 5 For the reasons stated in this opinion, we reverse and remand for re-sentencing 6 and affirm on all other issues. 7 IT IS SO ORDERED. 8

__________________________________ 9 JONATHAN B. SUTIN, Judge 10 WE CONCUR: 11

_________________________________ 12 JAMES J. WECHSLER, Judge 13

_________________________________ 14 ROBERT E. ROBLES, Judge 15