June 02, 2009 – State of New Mexico v. Bernardo Rodriguez, Jr., No. 27,437

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: June 2, 2009
NO. 27,437
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
BERNARDO RODRIGUEZ, JR.,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Joe Parker, District Judge
Gary K. King, Attomey General
Francine A. Chavez, Assistant Attomey 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 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

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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.

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{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.
{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

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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

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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).
{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

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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

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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 bind-over 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 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

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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 bind-over 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.

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2. 	Consequences and Remedy
{14} 	In State v. Vaughn, 74 N.M. 365, 393 P.2d 71 (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, Constitution, Art. VI, § 13. 	The district court
acquired jurisdiction of this case upon the filing of the information.” Id.; Mascarenas
v. State, 80 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

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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”) (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

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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

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Defendant’s conviction for violating Section 26-1-16(E) 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.

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{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

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that case, including the background, experience, and conduct of the
accused. To be 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

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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,

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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 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

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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

TIMOTHY L. GARCIA, Judge

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