A-1-CA-35014 | Omnilex

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Court of Appeals of New Mexico
Filed 1/31/2019 8:49 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 1/31/2019 8:49 AM
Plaintiff-Appellee, Ad. ~L4
Mark Reynolds
Vv. A-1-CA-35014
BRIAN BEARD,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Alisa A. Hadfield, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VARGAS, Judge.
{1} Defendant Brian Beard appeals his convictions for trafficking by possession

with intent to distribute; tampering with evidence; resisting, evading, or obstructing
an officer; possession of drug paraphernalia; and battery upon a peace officer.

Defendant raises the following issues: double jeopardy, improper expert witness

testimony, sufficiency of the evidence, improper prosecutorial comment on his right
to remain silent, and improper exclusion of his proposed jury instructions. We
conclude Defendant’s convictions for both battery upon a peace officer and resisting,
evading, or obstructing an officer violate the prohibition against double jeopardy.
We therefore remand to the district court to vacate Defendant’s conviction for
resisting, evading, or obstructing an officer. We affirm Defendant’s remaining
convictions.

BACKGROUND

23 | Detectives Daniel Porter and Erik Meek witnessed what appeared to be a drug
transaction between a female and Defendant. They approached Defendant, who was
alone inside his vehicle with the driver-side window down. Unable to exit his
vehicle, Defendant kicked Detective Porter twice through the driver-side window,
and then attempted to climb through that window. The detectives ultimately arrested
Defendant and discovered a bag containing thirteen crack cocaine rocks in between
his buttocks. Because this is a memorandum opinion and the parties are familiar with
the facts and procedural history of this case, we reserve discussion of the pertinent
facts for our analysis.

I. DISCUSSION

3} Defendant argues the following issues on appeal: (1) his convictions for

battery upon a peace officer and resisting, evading, or obstructing an officer

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constitute multiple punishments for the “same offense” as prohibited by the double

jeopardy clauses of the United States and New Mexico Constitutions; (2) the district

court erred in permitting Detective Porter to testify as an expert witness; (3) the State

did not produce sufficient evidence to support Defendant’s convictions for

trafficking by possession with intent to distribute and tampering with evidence; (4)

the district court erred in failing to grant a mistrial after the State commented on

Defendant’s silence; and (5) the district court erred in refusing to give jury

instructions on self-defense and unlawfulness related to the battery charges. We

address each argument in turn.

A. Defendant’s Convictions for Both Battery Upon a Peace Officer and
Resisting, Evading, or Obstructing an Officer Violate the Prohibition
Against Double Jeopardy

{43 The United States and New Mexico Constitutions both prohibit any person

from being “twice put in jeopardy” for the same offense. U.S. Const. amend. V;

N.M. Const. art. II, § 15. “Defendant need not have preserved this issue in order to

raise it on appeal.” State v. Sotelo, 2013-NMCA-028, { 18, 296 P.3d 1232. “Double

Jeopardy presents a question of law, which we review de novo.” /d. (internal

quotation marks and citation omitted). The double jeopardy prohibition against

multiple punishments “relates to two general categories of cases: cases in which a

defendant has been charged with multiple violations of a single statute based on a

single course of conduct, known as ‘unit of prosecution’ cases; and cases in which a

defendant is charged with violations of multiple statutes for the same conduct,
known as ‘double-description’ cases.” State v. DeGraff, 2006-NMSC-011, 4 25, 139
N.M. 211, 131 P.3d 61. Defendant raises a double-description argument, arguing he
was convicted of battery upon a peace officer and resisting, evading, or obstructing
an officer based on the same conduct.

{5} Our Supreme Court “synthesized the many varied theories set forth in both
New Mexico and federal decisional law to come up with a single test for multiple
punishment cases.” State v. Frazier, 2007-NMSC-032, 914, 142 N.M. 120,
164 P.3d | (citing Swafford v. State, 1991-NMSC-043, 4 8, 112 N.M. 3, 810 P.2d
1223). “The synthesis performed in Swafford resulted in our [Supreme Court’s]
adoption of what is generally a two-part inquiry for double-description claims, first
analyzing whether the conduct underlying the offenses is unitary, i.e., whether the
same conduct violates both statutes, and, if so, proceeding to analyze whether the
[Legislature intended to create separately punishable offenses.” State v. Gutierrez,
2011-NMSC-024, 7 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and
citation omitted).

1. Unitary Conduct

{6} | Defendant asserts his conduct underlying the convictions for battery upon a
peace officer and resisting, evading, or obstructing an officer was unitary. “Separate

punishments are permissible and conduct is not unitary if the offenses are separated

by sufficient indicia of distinctness.” State v. Ford, 2007-NMCA-052, § 12, 141
N.M. 512, 157 P.3d 77 (internal quotation marks and citation omitted). “To
determine whether a defendant’s conduct was unitary, we consider such factors as
whether the acts were close in time and space, their similarity, the sequence in which
they occurred, whether other events intervened, and a defendant’s goals for and
mental state during each act.” Jd. “The conduct question depends to a large degree
on the elements of the charged offenses and the facts presented at trial.” State v.
Franco, 2005-NMSC-013, 47, 137 N.M. 447, 112 P.3d 1104 (internal quotation
marks and citation omitted). “The proper analytical framework is whether the facts
presented at trial establish that the jury reasonably could have inferred independent

factual bases for the charged offenses.” /d. (internal quotation marks and citation

omitted).
{7} The conduct underlying Defendant’s convictions for battery upon a peace
officer and resisting, evading, or obstructing an officer was unitary. Defendant’s

convictions were based on his actions following Detective Porter and Detective
Meek’s approach. After the detectives announced their presence, Defendant
attempted to open the driver-side door with his left hand while his right hand was
behind his back. To prevent Defendant from exiting the vehicle, Detective Porter
pressed his body against the door. Defendant then attempted to open the door with

both hands before realizing Detective Porter was holding it shut. With the window

already rolled down, Defendant rotated onto his back, put his feet up, and kicked
Detective Porter twice in the chest. When Defendant kicked Detective Porter the
second time, Detective Porter grabbed Defendant’s legs.

{3} Seeing this, Detective Meek ran from the passenger side toward the driver-
side to assist Detective Porter. As Detective Meek ran to the driver-side, Defendant
“squatted his body” and attempted to either lunge toward the passenger-side door or
escape from Detective Porter’s grasp. Detective Meek ran back toward the
passenger-side of the vehicle, and Detective Porter continued to hold onto
Defendant’s legs. With both legs out of the driver-side window, Defendant reached
out of the driver-side window, grabbed the top of his vehicle, and attempted to pull
himself through the window. As Defendant was doing this, Detective Porter “pressed
him back in the vehicle, trying to . . . hold him back in the vehicle.” Detective Porter
then pulled out his gun, at which point Defendant followed Detective Porter’s orders
and was ultimately arrested.

{9} The State acknowledges that the record does not establish much separation of
time between the acts constituting the bases for the two separate charges. The record
further establishes that these events occurred in the same space and in close
sequence, and involved the same victim. After being told by the detectives to show
his hands, Defendant attempted to exit the vehicle. Unable to do so, Defendant

kicked Detective Porter through the open driver-side window, proceeded to lunge

toward the passenger-side door, and attempted to escape through the driver-side
window. Moreover, the acts were similar. Defendant’s acts of resisting, abusing, and
kicking Detective Porter all occurred after Detective Porter announced his presence
and told Defendant to show his hands. Thus, all of these acts together could
reasonably be viewed as having originated from Detective Porter’s attempt to
investigate a possible narcotics transaction while at the same time ensuring his and
Detective Meek’s safety. Finally, Defendant’s goals for and mental state during each
act support a conclusion that Defendant’s conduct was unitary. All of the acts could
reasonably be viewed as stemming from Defendant’s goal of resisting or abusing
Detective Porter as he performed his duties.

{10} The parties rely on different opinions from this Court to support their
argument in favor of or against the conduct being unitary. Compare Ford, 2007-
NMCA-052, {J 13-16 (concluding a defendant’s conduct where he kicked an officer
while being arrested and handcuffed was unitary for purposes of battery of an officer
and resisting, evading, or obstructing an officer), with State v. Lopez, 2008-NMCA-
111, 9 10, 12-13, 144 N.M. 705, 191 P.3d 563 (concluding a defendant’s flight
from, and subsequent returning to and punching of, an officer were not unitary for
purposes of battery of an officer and resisting, evading, or obstructing an officer).
While the defendant in Ford was being arrested, he attempted to “loosen” the

officers’ grip on him and kicked one officer in the leg as they handcuffed him. 2007-

NMCA-052, 413. We held that because the defendant’s acts of resistance and
battery occurred close in time and were “similar,” his conduct was unitary. /d.
{{] 13-16. In Lopez, an officer pulled over the defendant’s vehicle, at which point the
defendant exited his vehicle and ran away. 2008-NMCA-111, § 2. After being
chased by the officer for quite some time, the defendant “turned to face the officer,
taking a defensive attack posture, ... [and] punched him twice in the face[.]” /d.
{{ 2-3 (internal quotation marks omitted). This Court held the defendant’s “conduct
in returning to the officer and punching him in the face constituted a change from
his act of fleeing sufficient to determine that the two offenses were not unitary.” /d.
{| 10. Additionally, we distinguished the “protracted fleeing[,]” stopping, changing
course, physically confronting and punching the officer, present in Lopez, from the
acts in Ford because the defendant’s acts in Ford of resistance and battery were
similar, little time elapsed between the events, and the acts could “arguably be
characterized as incidental contact during an arrest and part of the struggle that
constituted the resisting of that arrest[.]” 2008-NMCA-111, f 11-12.

{11} Before applying either Ford or Lopez to the case at hand, we note that
resisting, evading, or obstructing an officer is an offense that may be charged in four
alternate ways. See NMSA 1978, § 30-22-1 (1981). Our differing analyses in the
two cases appear to be based in part on two different ways of charging under the

statute. Compare Ford, 2007-NMCA-052, § 18 (noting that the state charged the

defendant with violating Section 30-22-1(D)), and § 30-22-1(D) (‘“Resisting,
evading or obstructing an officer consists of... resisting or abusing any... peace
officer in the lawful discharge of his duties.”), with Lopez, 2008-NMCA-111, 7f 10,
12 (explaining that the defendant engaged in the act of “fleeing,” but not specifying
which subsection of Section 30-22-1 the defendant was charged with violating), and
§ 30-22-1(B) (“Resisting, evading or obstructing an officer consists
of... intentionally fleeing, attempting to evade or evading an officer of this state
when the person committing the act of fleeing, attempting to evade or evasion has
knowledge that the officer is attempting to apprehend or arrest him[.]” (emphasis
added)). As Defendant was charged with violating Section 30-22-1(D) rather than
Section 30-22-1(B), and because his acts were similar, close in time, place, and
sequence, and appear to stem from the same goal, Ford is applicable to the case at
hand and we conclude Defendant’s conduct was unitary. We therefore proceed to
the second part of the Swafford analysis.

2. Legislative Intent

{123 “The sole limitation on multiple punishments is legislative intent, and, unless
the Legislature clearly authorized multiple punishments, we apply the test articulated
in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine that intent.”
Franco, 2005-NMSC-013, { 12 (alterations, internal quotation marks, and citations

omitted). Blockburger provides, “where the same act or transaction constitutes a

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violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not.” 284 U.S. at 304. “[T]he proper inquiry focuses
upon the elements of the statutes in question—the evidence and proof offered at trial
are immaterial.” Swafford, 1991-NMSC-043, J 10. However, our Supreme Court
modified the Blockburger test, holding that “[i]f the statute is vague and unspecific,
or written in the alternative, courts must consider the [s]tate’s legal theory in
assessing whether each provision requires proof of a fact which the other does not.”
State v. Swick, 2012-NMSC-018, § 12, 279 P.3d 747 (internal quotation marks and
citations omitted). When the Legislature has not expressed its intent to punish the
same conduct under more than one statute, “and one statute is subsumed by the other,
then convictions for both cannot stand.” /d. §24. Furthermore, “[a]s Swafford
suggested, we treat statutes written in the alternative as separate statutes for purposes
of the Blockburger analysis.” Franco, 2005-NMSC-013, § 14.
13} As this Court has previously held, Section 30-22-1(D) (resisting, evading or
obstructing an officer) is a lesser offense of NMSA 1978, Section 30-22-24 (1971)
(battery upon a peace officer). Ford, 2007-NMCA-052, ¢ 19. In Ford, we stated:
Under a statutory analysis, Section 30-22-1(D) requires resisting or
abusing the officer who is performing his duties. Section 30-22-24
refers to the same officer and the same duties. It requires a touching or
application of force in a rude, insolent, or angry manner. In a discussion

concerning “rude, insolent or angry,” it is indicated [in State v. Padilla,
1983-NMCA-096, 101 N.M. 78, 678 P.2d 706, aff'd in part, rev'd in

SAO RP WN

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part on other grounds by 1984-NMSC-026, 101 N.M. 58, 678 P.2d

686] that one cannot resist or abuse without being rude, insolent, or

angry. The only difference is that battery requires the resisting or

abusing to have culminated in a touching, while resisting also prohibits

lesser forms of resisting. Stated otherwise, one cannot commit battery

on a peace officer without also resisting or abusing that officer contrary

to Section 30-22-1(D).
Ford, 2007-NMCA-052, {| 19; see State v. Diaz, 1995-NMCA-137, § 13, 121 N.M.
28, 908 P.2d 258 (“Since a defendant cannot resist or abuse an officer without being
rude, insolent, or angry, the difference between Section 30-22-24 and Section
30-22-1(D) is that a violation of the former culminates in an offensive touching while
a violation of the latter does not. Thus, a defendant cannot commit peace officer
battery without having also resisted or abused an officer.”). Defendant’s conviction
for violation of Section 30-22-24 subsumed his conviction for violation of Section
30-22-1, placing Defendant in double jeopardy. We therefore vacate Defendant’s

conviction for resisting, evading, or obstructing an officer.

B. ‘The District Court Did Not Err in Permitting Detective Porter to Testify
as an Expert Witness

(143 Defendant next contends the district court erred in allowing Detective Porter
to testify as an expert witness. Defendant’s argument is based on the State’s failure
to provide Defendant with advance notice of its intent to call Detective Porter as an
expert witness, Detective Porter’s limited experience, and the unreliability of

Detective Porter’s expert testimony.

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1. Notice
{15} Defendant first argues that the district court erred in allowing Detective Porter
to testify as an expert witness because the State did not provide timely notice of its
intent to call the detective as an expert. In its initial disclosure of witnesses, filed on
April 12, 2011, the State notified the district court and defense counsel of its intent
to call Detective Porter as a witness. Although defense counsel asserted he had not
received notice that Detective Porter would be called as an expert, the State filed an
amended notice, stating it intended to call Detective Porter as an expert witness
“regarding the trafficking of narcotics[,]” more than two weeks before the date of
trial. Defendant argues this late disclosure violated both Rule 5-501 NMRA and Rule
5-505 NMRA.
In considering whether late disclosure of evidence requires reversal, a
reviewing court will consider the following factors: (1) whether the
State breached some duty or intentionally deprived the defendant of
evidence; (2) whether the improperly non-disclosed evidence was
material; (3) whether the non-disclosure of the evidence prejudiced the
defendant; and (4) whether the [district] court cured the failure to timely
disclose the evidence.
State v. McDaniel, 2004-NMCA-022, 48, 135 N.M. 84, 84 P.3d 701 (internal
quotation marks and citation omitted).
{16} To establish the State’s breach of a duty, Defendant relies primarily on Rule

5-501 (amended in 2015, effective December 31, 2015), which provides that “within

ten (10) days after arraignment .. . the state shall disclose or make available to the

defendant ...a written list... identifying any witnesses that will provide expert
testimony and indicating the subject area in which they will testify[.]” Rule
5-501(A)(5) (2015). However, the version of Rule 5-501 that was in effect at the
time of trial provided no such requirement. See Rule 5-501(A)(5) (2013) (providing
that “within ten (10) days after arraignment... the state shall disclose or make
available to the defendant...a written list of the names and addresses of all
witnesses which the prosecutor intends to call at trial, together with any statement
made by the witness and any record of prior convictions of any such witness which
is within the knowledge of the prosecutor”). The State being under no obligation to
identify Detective Porter as an expert witness under the rule as written at the time,
we cannot say that it violated either Rule 5-501 or Rule 5-505(A) (2014) (“If,
subsequent to compliance with Rule 5-501 ..., and prior to or during trial, a party
discovers additional material or witnesses which he would have been under a duty
to produce or disclose at the time of such previous compliance if it were then known
to the party, he shall promptly give written notice to the other party[.]” (emphasis
added)).

417} Relying on Shamalon Bird Farm, Ltd. v. United States Fidelity & Guaranty
Co., 1991-NMSC-039, 111 N.M. 713, 809 P.2d 627, and State v. Orona, 1979-
NMSC-011, 92 N.M. 450, 589 P.2d 1041, Defendant nonetheless argues that

notwithstanding the absence of language related to expert witnesses in the 2013

version of Rule 5-501, he suffered prejudice from the inability to pursue a potential
line of defense. Shamalon held the district court did not abuse its discretion in
excluding the plaintiff's expert witness’s testimony in part because the plaintiff
notified the defense of its intent to call the expert witness late in the proceeding, and
the defense would therefore “not have adequate time to prepare their cross-
examination and trial strategy[.]” 1991-NMSC-039, §§ 2-3, 7. In reaching its
conclusion, however, our Supreme Court relied on Rule 1-026(B)(5)(a) NMRA
(1989), which provided that “[a] party may ... require any other party to identify
each person whom the other party expects to call as an expert witness at trial[.]”
Shamalon, 1991-NMSC-039, 97. As we have stated above, Rule 5-501 (2013)
included no such language.

{18} Orona provides that “[n]o more prejudice need be shown than that the
[district] court’s order may have made a potential avenue of defense unavailable to
the defendant.” 1979-NMSC-011, J 8. However, Orona involved the district court’s
order preventing defense counsel from interviewing the state’s main witnesses. Jd.
{ 3. The district court took no such action here. Indeed, defense counsel had ample
opportunity to interview Detective Porter following the State’s initial disclosure of
witnesses. Application of both Shamalon and Orona to the case at hand is therefore

misplaced.

419} Defendant further argues the State’s disclosure did not comport with his due
process rights, relying on State v. Schoonmaker, 2008-NMSC-010, {{ 6-7, 40, 143
N.M. 373, 176 P.3d 1105 (concluding that under the Sixth Amendment to the United
States Constitution, the district court should have granted defense counsel’s request
to withdraw so the public defender could assume the defense costs), overruled on
other grounds by State v. Consaul, 2014-NMSC-030, § 38, 332 P.3d 850; State v.
Allison, 2000-NMSC-027, f 6, 9, 16, 129 N.M. 566, 11 P.3d 141 (holding that to
avoid “unwarranted prejudice which could arise from surprise testimony[,]” the state
had a duty under the rules of criminal procedure to disclose an unrelated arrest report
to defense counsel before the defendant testified); and, Reed v. Furr’s Supermarkets,
Inc., 2000-NMCA-091, Ff 3-6, 13, 129 N.M. 639, 11 P.3d 603 (explaining, in a civil
case, that the party’s intentional deception during discovery undermined the design
of the process, which “is to avoid surprise in trial preparation and promote the
opposing party’s ability to obtain the evidence necessary to evaluate and resolve the
dispute” (alteration, internal quotation marks, and citation omitted)). These cases,
however, do not support Defendant’s assertion that the State’s late disclosure
violated Defendant’s due process rights.

720} Regardless, even if we assume the State violated some duty, Defendant fails
to establish materiality or prejudice. “The test for materiality, the second factor, is

whether there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” State v. Duarte,
2007-NMCA-012, 9 15, 140 N.M. 930, 149 P.3d 1027 (internal quotation marks and
citation omitted). Similarly, “determining whether the defendant has been
prejudiced, the third factor, [requires that] we look at whether the defense’s case
would have been improved by an earlier disclosure or how the defense would have
prepared differently for trial.” Jd. (alteration, internal quotation marks, and citation
omitted). Defendant argues the State’s late notice prevented him from more
thoroughly exploring Detective Porter’s expertise and proposed expert testimony,
and from obtaining his own expert witness. Defendant “has not shown how his cross-
examination would have been improved by an earlier disclosure or how he would
have prepared differently for trial.” McDaniel, 2004-NMCA-022, J 14 (rejecting the
defendant’s argument that his cross-examination or pre-trial preparation would have
improved by an earlier disclosure because “[t]he question of whether additional
discovery might have benefitted the defense is pure speculation” (alteration, internal
quotation marks, and citation omitted)). Moreover, Defendant filed no motions for a
continuance before trial when the State filed its amended witness notice listing
Detective Porter as an expert, nor did he seek one when the State tendered Detective
Porter as an expert witness during trial. See State v. Barraza, 1990-NMCA-026, 13,

110 N.M. 45, 791 P.2d 799 (concluding a defendant’s failure to seek a continuance

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undermines his claim of unfair surprise). Defendant has failed to demonstrate either
materiality or prejudice.
21; We note that the district court neither explicitly ruled on nor took measures to
cure the alleged late disclosure issue. However, in light of the other factors, we
decline to reverse Defendant’s convictions on these grounds.
2. Detective Porter’s Experience
22}. Defendant also argues the district court erred in permitting Detective Porter
to testify as an expert in differentiating between personal use and trafficking
quantities of crack cocaine because he lacked sufficient experience. Rule 11-702
NMRA provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact at issue.
“A witness may be admitted as an expert under Rule 11-702 upon the satisfaction of
three requirements: (1) that the expert be qualified; (2) that the testimony will assist
the trier of fact; and (3) that the expert’s testimony concern scientific, technical or
other specialized knowledge.” State v. Ruffin, _-NMCA-__,918, - P.3d_—-
(No. A-1-CA-35424, Oct. 22, 2018) (internal quotation marks and citation omitted).

“We review the [district] court’s admission of expert testimony for an abuse of

discretion.” State v. Torrez, 2009-NMSC-029, 4 9, 146 N.M. 331, 210 P.3d 228.

23} Detective Porter testified that he had worked with the Albuquerque Police
Department (APD) since 1997, and was “sworn since 1999.” He worked in the
Southeast Area Command for two years, responding to any community needs and
doing “some undercover work.” He then spent two years in the Gang Unit in an
undercover capacity. While in an undercover capacity, Detective Porter purchased
and sold narcotics, including crack cocaine. He testified to selling “small quantities”
of crack cocaine and estimated he had made fifty or more purchases of narcotics
while undercover.

{243 For approximately half a year, Detective Porter worked in the Central
Narcotics Team, “which was a mid- to high-level narcotics team” associated with
the Region One Task Force. Region One “was a narcotic region working drug cases
within the region of New Mexico.” In that capacity, he would “work any narcotic
complaints or investigations” in the task force region. After APD “pulled out of the
region task force” Detective Porter “became a detective in a street narcotics team,
the Valley Narcotics Unit[,]” for approximately three and a half years. He then
worked for approximately two years in the Middle Rio Grande Valley Task Force.
Following his time with the Middle Rio Grande Valley Task Force, Detective Porter
worked as a task force officer with the Drug Enforcement Administration (DEA)

Task Force for approximately one year. As a task force officer, Detective Porter

assisted in DEA investigations “for middle to high quantities” of narcotics and
started his own investigations.

25} Detective Porter moved to the Criminal Intelligence Unit for approximately
two years, where he worked with informants. He spent his last year in the unit as an
acting sergeant. Following his time in the Criminal Intelligence Unit, Detective
Porter returned to the APD Gang Unit, where he worked with informants and,
because of the “connection” between gangs and drugs, he had the opportunity to
work on drug cases. He remained in this position at the time of trial.

{26} Detective Porter also testified about the training he received related to
narcotics, describing the numerous classes and conferences he attended regarding
narcotics and the narcotics trade. Detective Porter explained that he attended around
one thousand hours of narcotics-related classes. Additionally, he undertook over
three hundred narcotics-related investigations as either a case agent, a co-case agent,
or an assisting officer and sometimes “utilize[d] an informant to assist in these
investigations[.]”

27} In Detective Porter’s work with informants, whether they were drug dealers
or users, they provided him with information about how much they used on a daily
basis. He gathered this information so he could “know what they’re buying, how
much they’re buying, what they’re using, [and] how much they’re using[.]”

Detective Porter would then use this information to ensure an informant’s normal

purchases were consistent with those made in “controlled buys,” wherein they would
give the informant, typically a drug user, “a specific amount of money for a specific
amount of drugs[.]” Detective Porter learned the “going rates for different
narcotics[,]” how a purchase is made, and how different drugs are packaged. Based
on the evidence of Detective Porter’s background, experience, training, and
knowledge in drug transactions, we cannot say that the district court abused its
discretion in permitting him to testify as an expert in differentiating between
personal use and trafficking quantities. Torrez, 2009-NMSC-029, ]] 9.

3. The Reliability of Detective Porter’s Expert Testimony

283 Defendant argues Detective Porter’s expert testimony was unreliable. In
determining initially whether expert testimony is competent under Rule 11-702, “the
[district] court must exercise its gate-keeping function and ensure that the expert’s
testimony is reliable.” Torrez, 2009-NMSC-029, 21. To the extent Defendant
argues Detective Porter’s methodology was unreliable, our Supreme Court has made
clear that “[t]he requirements that scientific expert testimony be grounded in valid,
objective science and reliable enough to prove what it purports to prove are
inapplicable to expert testimony that is based on the expert’s specialized
knowledge.” /d. (internal quotation marks and citation omitted). It is clear from the
record that Detective Porter’s expert testimony was based on his knowledge and

experience, not on any scientific expertise.

429} “[R]ather than testing an expert’s scientific methodology as required under
Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)] and [State v.
Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192], the [district] court must
evaluate a non-scientific expert’s personal knowledge and experience to determine
whether the expert’s conclusions on a given subject may be trusted.” Torrez, 2009-
NMSC-029, § 21. The district court uses an expert’s skills, experience, training, or
education “to test the validity of the expert’s conclusions” and determine whether
the conclusions “prove what they purport to prove.” Jd. § 22; see also Ruffin, ___-
NMCA-___, § 23 (concluding the district court should evaluate whether the expert
witness’s “conclusions are consistent with his specialized training and experience”
when testing the validity of his non-scientific expert testimony).

30} In addition to his experience, Detective Porter testified that in most cases
crack cocaine is sold by the rock, not by its weight. He explained that the weight of
a crack rock varies with the dealer; some sell rocks that weigh one gram while others
sell “.2[,] .4 at most for an individual rock.” He testified that in most cases when
they would purchase crack cocaine from a low-level dealer, the dealer would “have
just maybe a handful of rocks[.]” Furthermore, the low- to mid-level traffickers they
arrested were found with a range of three to twenty rocks, an amount he said was
consistent with trafficking. Detective Porter testified that based on his training and

conversations with informants, people typically use “maybe one to two rocks a

day[.]” However, the highest quantity of crack cocaine he had ever heard someone
smoke in a day was four rocks. In light of his knowledge and experience, we cannot
say Detective Porter’s conclusions were unreliable. See State v. Rael-Gallegos,
2013-NMCA-092, 4 21, 308 P.3d 1016 (explaining that the reviewing court must
consider whether the expert witness’s “knowledge and experience were sufficient to
support a determination that her conclusions regarding the distinction between
personal use amounts versus trafficking amounts of crack cocaine may be trusted”).
{31} Nonetheless, Defendant argues that Detective Porter’s expert testimony was
unreliable because of his investigative involvement in this case. Defendant relies on
United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003), in which the United
States Court of Appeals for the Second Circuit noted such involvement confers upon
the expert “the aura of special reliability and trustworthiness surrounding expert
testimony[.]” /d. This Court, however, has recently rejected this concern. See Ruffin,
___-NMCA-___, 431 (noting that our Supreme Court “rejected this proposition” in
Alberico, 1993-NMSC-047, § 36, when it concluded that the “premise that juries are
awed by the aura of the infallibility of expert opinion testimony and thus defer to it
is flawed speculation” (internal quotation marks omitted)). The Dukagjini court also
noted “there is an increased danger that the expert testimony will stray from applying
reliable methodology and convey to the jury the witness’s ‘sweeping conclusions’

about [the defendants’ ] activities[.]” 326 F.3d at 54. Here, again, this Court rejected

the Dukagjini court’s proposition, explaining “that it is the responsibility of the
district court to remain vigilant and ensure that the expert not stray from the scope
of his/her expertise.” Ruffin, _ -NMCA-___, § 32. For these reasons, we conclude
the district court did not err in permitting Detective Porter to testify as an expert
witness, and we proceed to Defendant’s arguments regarding the sufficiency of the
evidence.

C. Defendant’s Convictions Were Supported by Substantial Evidence

(323 Defendant challenges the sufficiency of the evidence supporting his
convictions for trafficking by possession with intent to distribute, as well as
tampering with evidence. “Jury instructions become the law of the case against
which the sufficiency of the evidence is to be measured.” State v. Jackson, 2018-
NMCA-066, 922, 429 P.3d 674, cert. denied, 2018-NMCERT-__ (No.
S-1-SC-37267, Oct. 15, 2018) (internal quotation marks and citation omitted). “In
reviewing the sufficiency of the evidence in a criminal case, we must determine
whether substantial evidence, either direct or circumstantial, exists to support a
verdict of guilty beyond a reasonable doubt for every essential element of the crime
at issue.” Rael-Gallegos, 2013-NMCA-092, §8 (internal quotation marks and
citation omitted). “Resolving all conflicts, indulging all permissible inferences to
uphold the conviction, and disregarding all evidence and inferences to the contrary,

we view the evidence in the light most favorable to the verdict to ensure that a

rational jury could have found each element of the crime established beyond a
reasonable doubt.” /d. (alteration, internal quotation marks, and citation omitted). “It
is for the fact-finder to evaluate the weight of the evidence, to assess the credibility
of the various witnesses, and to resolve any conflicts in the evidence; we will not
substitute our judgment as to such matters.” /d. (alteration, internal quotation marks,
and citation omitted).

33} With regard to Defendant’s trafficking conviction, the jury was instructed that
the State must prove beyond a reasonable doubt that Defendant (1) had cocaine in
his possession, (2) knew or believed it was cocaine, and (3) intended to transfer it to
another. Defendant argues the State did not present sufficient evidence of his intent
to distribute. “Intent to distribute may be inferred when the amount of controlled
substance possessed is inconsistent with personal use.” State v. Hubbard, 1992-
NMCA-014, 79, 113 N.M. 538, 828 P.2d 971. “Intent may be proved by inference
from surrounding facts and circumstances, such as quantity and manner of packaging
of the controlled substance.” /d.

{34} The detectives testified that they first saw Defendant at his home, where they
witnessed a vehicle “pull up to” Defendant’s home. Defendant exited his home,
walked to the vehicle, met with the driver of the vehicle, and returned to his home.
After the vehicle left, Defendant entered a vehicle and drove to an Arby’s. Detective

Porter testified that when Defendant first pulled into the Arby’s parking lot, a female

approached Defendant’s vehicle, leaned into the driver-side window, and reached
into the vehicle, which “was consistent with people’s hands in the vehicle, like there
was an exchange[.]” After a “short time” passed, the female walked towards the
Arby’s with nothing visible in her hands. Defendant “circled” through the parking
lot and pulled into a parking spot, at which point the female walked over to his car
and “reached in to talk through [the] passenger window.” Detective Porter described
this activity as being “consistent with drug trafficking.”

{35} Furthermore, Detective Porter explained that an individual possessing a range
of three to twenty rocks of crack cocaine was consistent with trafficking. He and
Detective Meek recovered a bag containing thirteen rocks of crack cocaine on
Defendant’s person. Given the quantity of crack cocaine found on Defendant’s
person, combined with the surrounding circumstances and Detective Porter’s expert
testimony, we hold that there was sufficient evidence from which the jury could infer
Defendant’s intent to distribute. See id. J 15 (explaining that “[i]f the amount of an
illegal drug found in an accused’s possession is not by itself sufficient to prove
inconsistency with personal use, then the state must present testimony that the
amount of drugs in the accused’s possession is inconsistent with personal use’).

{36} As to the tampering conviction, Defendant’s sole argument is that because
there was only sufficient evidence of possession, rather than trafficking, he should

have been convicted of fourth-degree tampering, not a third-degree felony. See

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NMSA 1978, § 30-22-5(B)(2) (2003) (providing that “if the highest crime for which
tampering with evidence is committed is a third degree felony or a fourth degree
felony, the person committing tampering with evidence is guilty of a fourth degree
felony” (emphasis added)). However, as we have concluded above, there was
sufficient evidence to support Defendant’s conviction for trafficking by possession
with intent to distribute, a first-degree felony “for the second and subsequent

offenses[.]” NMSA 1978, § 30-31-20(B)(2) (2006). Having been convicted of a

first-degree felony due to a prior felony “[t]rafficking or [d]istribution” conviction,

Defendant’s tampering with evidence conviction is therefore supported by sufficient

evidence. See § 30-22-5(B)(1) (providing that “if the highest crime for which

tampering with evidence is committed is a... first degree felony ..., the person
committing tampering with evidence is guilty of a third degree felony”).

D. The District Court Did Not Err in Denying Defendant’s Motion to
Dismiss on Grounds That the State Commented on His Right to Remain
Silent

437) Defendant contends the district court erred in denying its motion to dismiss

after the State commented on Defendant’s right to remain silent. In both his opening

statement and closing argument, defense counsel repeatedly stated that Defendant
was addicted to crack cocaine. Defendant did not testify, and no evidence was

presented to support defense counsel’s assertion that Defendant was an addict.

During the State’s rebuttal argument, it argued, “you have heard no evidence that

[Defendant] is a crack addict, none. That never came out of... anybody’s mouth on
the stand.” Defendant objected and moved for dismissal, arguing the State implied
“the only one that could have said that he was an addict was the person who decided
to not testify, based on his Fifth Amendment [rJight.” The district court denied
Defendant’s motion.

38} “The privilege against self-incrimination prohibits the prosecutor from
commenting on a defendant’s failure to testify at trial.” State v. Smith, 2001-NMSC-
004, 938, 130 N.M. 117, 19 P.3d 254 (internal quotation marks and citation
omitted). “Where the error is preserved, we review a district court’s denial of a
motion for mistrial on the basis of remarks made in closing argument for an abuse
of discretion.” State v. Ramos-Arenas, 2012-NMCA-117, 916, 290 P.3d 733
(alterations, internal quotation marks, and citations omitted). “An abuse of discretion
occurs where the district court acts in an obviously erroneous, arbitrary, or
unwarranted manner.” State v. Sena, 2018-NMCA-037, 47, 419 P.3d 1240, cert.
granted, 2018-NMCERT-___ (No. S-1-SC-36932, consolidated with No. S-1-SC-
36933, May 25, 2018) (internal quotation marks and citation omitted).

(393 Although Defendant stated in his brief in chief that he moved for a mistrial,
the State correctly points out that Defendant moved to dismiss. In so doing, the State
appears to argue that Defendant’s request for dismissal rather than a mistrial did not

sufficiently preserve the issue. We note, however, that in ruling on Defendant’s

objection, the district court stated, “I will say that I think this is close, but not far
enough for a mistrial.” (Emphasis added.) Moreover, the State asserted it had not
commented on Defendant’s failure to testify. In light of the district court’s ruling
and the State’s response, we assume for purposes of this appeal that Defendant’s
objection preserved the issue. See State v. Griffin, 2002-NMCA-051, 7 5, 132 N.M.
195, 46 P.3d 102 (“The purpose of the preservation requirement is twofold: (1) that
the [district] court be alerted to the error so that it is given an opportunity to correct
the mistake, and (2) that the opposing party be given a fair opportunity to meet the
objection.” (internal quotation marks and citation omitted)).

{40} When reviewing challenges to closing arguments, three factors “carry great
influence in our deliberations: (1) whether the statement invades some distinct
constitutional protection; (2) whether the statement is isolated and brief, or repeated
and pervasive; and (3) whether the statement is invited by the defense.” State v. Sosa,
2009-NMSC-056, § 26, 147 N.M. 351, 223 P.3d 348. “In applying these factors, the
statements must be evaluated objectively in the context of the prosecutor’s broader
argument and the trial as a whole.” /d. Taken in context, the State’s comment was a
very brief part of its rebuttal argument. Moreover, the comment was made in direct
response to defense counsel’s repeated assertions that were unsupported by the
evidence. Accordingly, Defendant failed to show there was a violation of his Fifth

Amendment rights. See Smith, 2001-NMSC-004, §§ 37, 40 (holding that because it

was a brief part of the state’s closing argument and was based on evidence presented
at trial, there was no violation of the non-testifying defendant’s Fifth Amendment
rights when the prosecutor stated in her rebuttal argument that there was no
testimony to support defense counsel’s factual assertion made in closing argument).
The district court did not abuse its discretion in denying Defendant’s motion.

E. The District Court Did Not Err When it Declined to Give Defendant’s
Jury Instructions

{41} Finally, Defendant argues the district court erred in refusing to give jury
instructions on self-defense and unlawfulness related to the battery charges. “The
propriety of jury instructions is a mixed question of law and fact.” State v. Contreras,
2007-NMCA-119, 7 8, 142 N.M. 518, 167 P.3d 966 (internal quotation marks and
citation omitted). “When considering a defendant’s requested instructions, we view
the evidence in the light most favorable to the giving of the requested instructions.”
Id. (alteration, internal quotation marks, and citation omitted). “Viewing the facts in
that manner, we review the issue de novo.” /d. “When evidence at trial supports the
giving of an instruction on a defendant’s theory of the case, failure to so instruct is
reversible error.” /d. (internal quotation marks and citation omitted).

{42} “[A] self-defense instruction is required whenever or if a defendant presents
evidence sufficient to allow reasonable minds to differ as to all elements of the
defense.” State v. Ellis, 2008-NMSC-032, 915, 144 N.M. 253, 186 P.3d 245

(alteration, internal quotation marks, and citation omitted). “[A] person has only a

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qualified right to assert self-defense against a police officer, because police officers
have a duty to make arrests and a right to use reasonable force when necessary.” Jd.
“[A]lthough one does have a right to defend oneself from a police officer, it is clear
that this right is limited.” /d. (alterations, internal quotation marks, and citation
omitted). “This limitation entitles one to assert self-defense only when the officer is
using excessive force.” Jd. J 16.
{43} Defendant argued in the district court that the jury could have rejected the
detectives’ testimonies:

They inflicted pain upon my client and, therefore, my client, in trying

to get away, he kicked or struck one of the police officers. And I believe

that is enough for self-defense. Because the inference is that there could

have been excessive force on the part of the officers, whoever, Porter

or Meek, whoever it is. And at that point, my client decided to defend

himself, not knowing or perhaps knowing, that they were police

officers, but that’s for the jury to decide.
(Emphasis added.) Defendant’s argument is predicated on the notion that the jury
could have found that he kicked Detective Porter after either he or Detective Meek
made physical contact with Defendant. However, the record demonstrates that
Defendant kicked Detective Porter before either Detective Porter or Detective Meek
used any degree of force on Defendant. There being no evidence to support
Defendant’s contention that he kicked to defend himself after the detectives had

already used force on Defendant, the district court did not err in rejecting his

proposed jury instructions. See State v. Boyett, 2008-NMSC-030, 4 12, 144 N.M.

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184, 185 P.3d 355 (“A defendant is entitled to an instruction on his or her theory of
the case if evidence has been presented that is sufficient to allow reasonable minds
to differ as to all elements of the offense.” (internal quotation marks and citation
omitted)); State v. Gonzales, 2007-NMSC-059, 4 19, 143 N.M. 25, 172 P.3d 162
(explaining that “there must be evidence to support” an instruction on self-defense
to warrant giving the instruction).

Il. CONCLUSION

{443 We conclude Defendant’s convictions for battery upon a peace officer and
resisting, evading, or obstructing an officer violate the prohibition against double
jeopardy. We therefore remand to the district court to vacate Defendant’s conviction
for resisting, evading, or obstructing an officer, and to resentence Defendant
accordingly. We further conclude that Defendant’s remaining claims of error are

without merit and affirm the district court on all other grounds.

45} ITISSO ORDERED. Yager
Mi Gp. WE

JULIE J. EE

WE CONCUR:

. VANZI, Judge

TENRRERC ATTREP, Judge

January 31, 2019- State of New Mexico v. Brian Beard, No. A-1-CA-35014

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