June 06, 2013 – State v. Monica Rael-Gallegos, No. 30,349

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: June 6, 2013
NO. 30,349
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MONICA RAEL-GALLEGOS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee
The Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Monica Rael-Gallegos appeals her conviction of trafficking, by
possession with intent to distribute cocaine. She argues: (1) there was insufficient
evidence to support the jury’s verdict, (2) she was denied her right to confront her
accuser, (3) the district court erred in admitting testimony of the State’s expert
witness, and (4) ineffective assistance of counsel. We affirm.
BACKGROUND
{2} 	In July 2007, Defendant was detained by Officer Jose Sanchez of the
Albuquerque Police Department who found her at the intersection of Coors Boulevard
and Central Avenue in Albuquerque, New Mexico, “passed out at the wheel” of her
vehicle at approximately 4:00 a.m. After several attempts, Officer Sanchez succeeded
in waking Defendant and requested that she step out of the vehicle. 	Defendant
complied, and as she stepped out of the vehicle, a small plastic bag containing what
the officer believed to be crack cocaine fell out of her purse and onto the ground.
Defendant admitted to having “smoked crack [cocaine] about an hour . . ., prior to
being stopped” by police.
{3} 	Officer Sanchez arrested Defendant and conducted an inventory search of the
vehicle. He did a second inventory search after Defendant informed him that she had

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money in the console of the vehicle. 	Among the evidentiary items found in the
vehicle during the two inventory searches were sandwich bags, three cell phones, two
separate amounts of cash, a crack pipe, and a second bag in the console of the vehicle
containing what the officer believed to be crack cocaine. The substance from the bags
was later confirmed by laboratory testing to be cocaine with a combined weight of
3.46 grams. Officer Sanchez counted the two amounts of cash that totaled $520.
{4} 	Based on the amount of crack cocaine, the baggies, the multiple cell phones and
the amount of cash in the vehicle, Officer Sanchez’s training and experience led him
to believe that Defendant was “a trafficker.” 	Defendant was charged accordingly,
with trafficking cocaine, among other crimes. Defendant was brought to trial before
a jury in May 2009.
{5} 	Among the State’s witnesses was Sergeant Andrea Taylor, who was qualified
as an expert in differentiating personal use versus trafficking amounts of crack
cocaine. During trial, Sergeant Taylor examined the crack cocaine that Defendant was
alleged to have possessed at the time of her arrest and she testified that she counted
approximately nineteen “rocks.” She provided the caveat, however, that because the
evidence had been collected in 2007, some pieces may have “chipped off” and thus,
it was not fair to say how many rocks comprised the evidence in 2007. In addition to
this and other testimony, Sergeant Taylor also testified as to some things that a crack

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cocaine “dealer” might have in his or her possession. These items included ledgers,
crack packaged for sale, multiple cell phones, paraphernalia (either straws or needles
to ingest powder cocaine, or pipes to smoke crack cocaine), weapons, large amounts
of money, scales, baggies, or a “bunch of bags with the ends cut off.” Sergeant Taylor
stated, however, that someone who possesses drugs and the drug-related items that she
described was not necessarily a drug trafficker. 	Further background regarding
Sergeant Taylor’s testimony and other aspects of the trial will be provided as relevant
throughout this Opinion.
{6} 	The jury found Defendant guilty of trafficking, among other crimes. 	She
appeals from the trafficking conviction. Defendant argues that there was insufficient
evidence to prove that the cocaine found in the console of the vehicle was hers, and
therefore, that there was insufficient evidence to support the trafficking conviction.
She also argues that her confrontation right was violated by Officer Sanchez’s
testimony regarding the amount of money that was found in her vehicle. Further, she
argues that Sergeant Taylor should not have been qualified as an expert, that her
testimony exceeded the bounds of permissible expert testimony, and that it was more
prejudicial than probative. 	Finally, she argues that she did not receive effective
assistance of counsel.

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DISCUSSION
I. 	Sufficiency of the Evidence
{7} 	Defendant challenges the sufficiency of the evidence to support the jury’s
verdict as to the trafficking charge. Defendant concedes that there was substantial
evidence to prove “that she possessed some cocaine,” that is, the cocaine that fell to
the ground when Defendant got out of the vehicle. Defendant claims, however, that
the State failed to present sufficient evidence that she possessed the additional cocaine
that was found in the center console. 	Further, based on her claim that the cocaine
found in the center console was not in her possession, Defendant argues that there was
insufficient evidence to prove that she “intended to transfer the cocaine to another.”
{8} 	“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.” State v. Armijo, 2005-NMCA-010, ¶ 4, 136 N.M. 723, 104 P.3d
1114. 	“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.” 	Id.
“[I]t is for the fact-finder to evaluate the weight of the evidence, to assess the

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credibility of the various witnesses, and to resolve any conflicts in the evidence; we
will not substitute our judgment as to such matters.” Id. 	We will not re-weigh the
evidence. State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.
{9} 	The jury was instructed that, to find Defendant guilty of trafficking, the State
was required to prove that Defendant had cocaine in her possession, knew or believed
it to be cocaine, and intended to transfer it to another. Defendant’s sufficiency of the
evidence attack is limited to the cocaine that was found in the center console. The
cocaine that dropped to the ground is not at issue. Defendant argues that there was
insufficient evidence to prove that the cocaine in the center console was hers. Then,
building on that premise, she argues there was insufficient evidence to support a
trafficking charge.
A. 	The Cocaine in the Center Console
{10} 	Defendant argues that because she directed police toward the center console,
by telling Officer Sanchez that she had money stored there, “it defies reason” to infer
that Defendant owned the cocaine that was also in the center console because, had
Defendant known that the cocaine was in the console, she would not have “point[ed]
Officer Sanchez to search” there. Additionally, in an apparent attempt to preemptively
rebuff the State’s argument that Defendant admitted to Officer Sanchez that the
cocaine in the center console was hers, Defendant attacks Officer Sanchez’s testimony

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for being “impossibly vague” and therefore “meaningless.” Further, Defendant argues
that “in the absence of any admission” of ownership of the cocaine in the center
console, and absent evidence “that she was in exclusive possession of the vehicle,”
any theory of constructive possession lacks viability.
{11} 	Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that there existed substantial evidence from which the jury could conclude
that Defendant possessed the cocaine found in the center console. Officer Sanchez
testified that Defendant told him, “[t]hat there was money inside the vehicle, and it
was in the center console.” Accordingly, he went back to the vehicle and removed a
bag that he found in the console. Inside that bag he found $392 along with “a small
bag with the off-white substance . . ., consistent with crack cocaine.” In response to
the State’s question, “did . . . [D]efendant mention anything about whose crack that
was[,]” Officer Sanchez testified that Defendant “stated it was hers.” Viewed in the
context of the prosecutor’s questions which were, during the foregoing aspect of the
State’s examination of Officer Sanchez, limited to the subject of the cocaine found in
the console, the jury could reasonably infer that Defendant admitted to Officer
Sanchez that the cocaine in the console was hers. 	Moreover, Defendant was the
registered owner and the sole occupant of the vehicle from which the cocaine was
retrieved. The cocaine was found in the center console of the vehicle inside of a bag

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that also contained money, to which Defendant had directed Officer Sanchez. From
these facts, the jury could reasonably infer that Defendant possessed the cocaine.
{12} 	We see no reasonable basis for Defendant to discuss constructive possession.
The jury was not instructed as to constructive possession, nor, during trial, did the
State rely on a theory of constructive possession to prove its case. 	Defendant’s
reliance on State v. Becerra, 112 N.M. 604, 817 P.2d 1246 (Ct. App. 1991), and State
v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct. App. 1974), for the analyses in those cases
of constructive possession is misplaced. Those cases are inapplicable under the facts
of this case.
{13} 	As to Defendant’s argument that “it defies reason” to assume that she would
alert Officer Sanchez to the money if she knew that he would inevitably find the
cocaine, we do not find this argument persuasive. While this line of reasoning could
suggest that Defendant was unaware of the presence of cocaine in the console, it is not
the purview of this Court to search for inferences to support a verdict contrary to the
jury’s. 	See State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285.
In sum, we conclude that there was sufficient evidence from which the jury could
reasonably conclude that Defendant was in possession of the cocaine that was found
in the console of her vehicle.
B. 	Trafficking

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{14} 	As to the sufficiency of the evidence to support the jury’s determination that
Defendant intended to transfer the cocaine to another, Defendant’s argument rests on
the premise that she possessed only the cocaine that fell to the ground when she got
out of her vehicle. Defendant argues “the insufficiency of evidence that Defendant
possessed the cocaine found in the console undermines Defendant’s conviction for
trafficking. 	Specifically, possession of a single rock of cocaine does not establish
trafficking[.]” Having already rejected the premise of this argument by concluding
that sufficient evidence supported the jury’s determination that she possessed all of
the cocaine at issue, we find Defendant’s argument unpersuasive.
{15} 	We conclude that sufficient evidence existed to support the jury’s finding that
Defendant was guilty of trafficking cocaine. Defendant possessed the cocaine that fell
to the ground and also the cocaine found in the console of the vehicle. The jury’s
verdict was further supported by other evidentiary items and by testimony, including
that of Officer Sanchez, who stated that based on the amount of cocaine that was
found, the sandwich bags, the multiple cell phones, and the amount of cash that was
in the truck, his training and experience led him to believe that Defendant was “a
trafficker.” Officer Sanchez’s testimony in that regard was elicited by Defendant’s
own counsel, who asked Officer Sanchez, “[w]hy did you believe [that] you had a
trafficker?” Defendant’s sufficiency argument does not provide a basis for reversal.

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II. 	Confrontation
{16} 	Defendant argues that her Sixth Amendment right to confront her accuser was
violated by Officer Sanchez’s testimony regarding the amount of cash found in her
vehicle and the denominations thereof. Defendant did not, in district court, make a
confrontation argument regarding Officer Sanchez’s testimony. 	Accordingly, the
State argues, and we agree, that the confrontation argument was not preserved. See
Rule 12-216(A) NMRA (“To preserve a question for review[,] it must appear that a
ruling or decision by the district court was fairly invoked[.]”). This argument will not
be considered further on appeal. See State v. Garcia, 2013-NMCA-005, ¶ 9, 294 P.3d
1256 (stating that we will not consider unpreserved constitutional arguments).
III. 	The Expert Witness Issue
{17} 	Over Defendant’s objections, the district court admitted the testimony of
Sergeant Taylor, who testified as an expert in distinguishing between personal use and
trafficking amounts in terms of crack cocaine. 	On appeal, Defendant argues that
Sergeant Taylor should not have been qualified as an expert, that her testimony was
more prejudicial than probative, and that her testimony exceeded the bounds of
permissible expert testimony. We review for an abuse of discretion the admission or
exclusion of an expert’s testimony; however, “the threshold question of whether the

10
. . . court applied the correct evidentiary rule or standard is subject to de novo
review[.]” State v. Torres, 1999-NMSC-010, ¶¶ 27-28, 127 N.M. 20, 976 P.2d 20.
A. 	Sergeant Taylor Was a Properly Qualified Expert
{18} 	“Under Rule 11-702 NMRA, a witness must qualify as an expert in the field for
which his or her testimony is offered before such testimony is admissible.” State v.
Torrez, 2009-NMSC-029, ¶ 15, 146 N.M. 331, 210 P.3d 228 (internal quotation marks
and citation omitted). Rule 11-702 provides that “[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 such testimony will assist the trier of fact. In examining
Rule 11-702, our Supreme Court has emphasized that “the disjunctive ‘or’ in Rule 11-
702 permits a witness to be qualified under a wide variety of bases[.]” State v.
Downey, 2008-NMSC-061, ¶ 26, 145 N.M. 232, 195 P.3d 1244. “[N]o set criteria can
be laid down to test such qualifications.” 	Torrez, 2009-NMSC-029, ¶ 15 (internal
quotation marks and citation omitted). 	The testimony of police officers that are
qualified as experts “is admissible even if it touches upon [the] ultimate issue to be
decided by the [jury].” State v. Torres, 2005-NMCA-070, ¶¶ 27, 32, 137 N.M. 607,
113 P.3d 877 (internal quotation marks and citation omitted); State v. Landgraf, 1996-
NMCA-024, ¶ 20, 121 N.M. 445, 913 P.2d 252.

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{19} 	Defendant relies on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), to provide the
basis for her argument that Sergeant Taylor was not properly qualified as an expert.
She argues that Sergeant Taylor was not qualified to testify as an expert because “no
one else with [Sergeant Taylor’s] experience or expertise had published on the subject
of possession of a controlled substance for use versus possession for distribution, and
no one else taught a similar subject.” 	She also argues that Sergeant Taylor’s
“methodology” was flawed because it “was based on interviewing confidential
informants, arrestees, and random pedestrians[.]” Defendant further attacks Sergeant
Taylor’s research “methodology” on the basis that it is “circular,” and she questions
the reliability of Sergeant Taylor’s “test subjects.” 	Further, Defendant argues that
Sergeant Taylor’s testimony was comprised of “guesse[s]” and contradictions, and
that her experience as an undercover officer may have rendered her “an expert in the
amount of cocaine an undercover officer could safely purchase[,]” but not an “expert
in how much cocaine would typically be purchased for use rather than distribution.”
{20} 	Daubert and Alberico set forth the standards of admissibility for scientific
evidence. 	Daubert, 509 U.S. at 592-95; Alberico, 116 N.M. at 167-68, 861 P.2d at
203-04. 	Our Supreme Court has recognized a distinction between the standards
applicable to admitting scientific testimony and admitting testimony that is based on

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specialized knowledge. 	Torrez, 2009-NMSC-029, ¶¶ 20-21. 	Unlike scientific
testimony, which must be “grounded in valid, objective science and reliable enough
to prove what it purports to prove,” in determining whether to admit non-scientific
expert testimony, “the court must evaluate [the] . . . expert’s personal knowledge and
experience to determine whether the expert’s conclusions on a given subject may be
trusted.” Id. ¶ 21 (internal quotation marks and citation omitted). It is clear from the
record in this case that Sergeant Taylor was accepted as an expert based on her
knowledge and experience, as opposed to any purported scientific basis of expertise.
Therefore, Defendant’s reliance on Daubert and Alberico is misplaced. See Torrez,
2009-NMSC-029, ¶ 21.
{21} 	Rather than applying the Daubert or Alberico standards to Sergeant Taylor’s
qualifications, we must instead consider whether Sergeant Taylor’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. See Torrez, 2009-NMSC-029, ¶ 21 (stating the standard for
admissibility of non-scientific expert testimony). Sergeant Taylor testified that she
had worked for the Bernalillo County Sheriff’s Department for eight years. As a cadet
in the police academy, she had received training in basic narcotics recognition and
basic narcotics interdiction, which she described as “interrupting when people are

13
bringing large loads of narcotics from a different state into ours.” Early in her career,
her duties included being “on patrol in the field” during which time she investigated
three to five hundred drug-related offenses. After “about three-and-a-half years of
patrol,” Sergeant Taylor was promoted to detective in narcotics, for which position
she underwent written and oral tests, among other requirements.
{22} 	As a narcotics detective, Sergeant Taylor received “a substantial amount of
training[,]” including “approximately 360 hours of advanced narcotics training.” She
also did undercover work, worked on a task force with “numerous federal agencies,”
and she “earned the right to be . . . an instructor of narcotics at [the police] academy[]
to citizen groups, as well as the district attorney’s office.” In her total time with the
department, Sergeant Taylor estimated that she had done about a thousand drug
investigations. 	After spending almost four years as a narcotics detective, she was
promoted to sergeant.
{23} 	In addition to her formal training, Sergeant Taylor testified that she learned
about narcotics use and sales from interviewing every one of the approximately one
thousand people that she arrested and some people that she did not arrest, but who she
could tell were “going through a rough time[.]” 	She would ask these individuals
whether they had a habit, whether they used and sold or just sold, how they used the
narcotics, if they did use, whether and how they packaged their narcotics, where their

14
best hiding spot was, what the slang terms were, how much did they use, how much
did they spend on narcotics, and other information relevant to narcotics use and trade.
Sergeant Taylor also testified as to her experience investigating narcotics in an
undercover capacity, which she did approximately three times per week, twelve hours
per day for almost four years. 	As an undercover officer, she purchased drugs,
including crack cocaine. Based on her experience and from “talking with numerous
people” when she set out to purchase crack cocaine under the guise of it being for
herself, she limited her purchase to five rocks because that was “not a crazy amount
to have[,]” and it was an amount that “could be used in a day.” She testified that once,
with a story that she was a stripper, and planned to resell it at a club, she purchased
twelve rocks.
{24} 	Since 2006 and continuing through the time of trial, Sergeant Taylor was the
lead instructor for the basic law enforcement academy in Bernalillo County, and she
taught narcotics investigation and recognition, among other classes, to all of the new
hire cadets. Sergeant Taylor’s narcotics investigations course includes a segment “on
what are trafficking amounts, [and] what are possession amounts[.]” That segment
of the class also involves “evidence that you can look for in a stop that might help”
to make such a distinction, including recognizing evidence of “packaging, scales,
firearms, cell phones, admissions, [and] ledgers[.]” 	Additionally, among her

15
narcotics-related teaching experiences, Sergeant Taylor has presented at “high
intensity drug trafficking area” conferences, and she has taught “narcotics awareness,
trafficking versus possession amounts” and other “things of that nature” to the district
attorney’s office. 	Sergeant Taylor further testified that since 2006, she had been
qualified as an expert in the Second Judicial District approximately four times to
testify as to the difference between trafficking and possession.
{25} 	Rule 11-702 expressly allows experts to be qualified based on their knowledge,
experience, training, and education, and Sergeant Taylor’s experience spanned the
gamut of the field of narcotics investigation, undercover work, and teaching,
equipping her with sufficient knowledge and experience to testify as an expert in
distinguishing between possession and trafficking narcotics. Based on the evidence
of Sergeant Taylor’s background, experience, and knowledge in drug transactions, we
cannot say that the district court abused its discretion in qualifying Sergeant Taylor
as an expert in differentiating between possession amounts and trafficking amounts
of crack cocaine. Defendant’s argument to the contrary provides no basis for reversal.
B. 	Sergeant Taylor’s Testimony Was Within the Bounds of Allowable Expert
Testimony
{26} 	To demonstrate the basis of Defendant’s next argument, we present the portion
of Sergeant Taylor’s testimony asserted by Defendant to be objectionable.

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[Prosecutor:] Now, you stated that you’ve encountered individuals who
have sold crack cocaine in the field.
[Sergeant Taylor:] Yes.
[Prosecutor:] Have you arrested any?
[Sergeant Taylor:] Yes.
[Prosecutor:] 	Can you please tell the jury some of those experiences.
Very specifically, those prior experiences, how many rocks does a
typical [trafficker], low-level [trafficker], carry with them?
. . . .
[Sergeant Taylor:] 	It can be a couple of grams. 	The rocks are really
light, so it’s always better to speak in terms of the rocks. 	Maybe
about—some have had 50, and some have had as little as, you know, 12,
13.
[Prosecutor:] Okay. And based on your training and experience, how
much, typically, does a person who simply possesses—or for personal
use, crack cocaine, have on their person?
[Sergeant Taylor:] Anywhere from five to one to maybe a half of one.
[Prosecutor:] Have you seen anybody who has possessed—encountered
them, arrested them, investigated them—19 rocks of crack cocaine?
[Sergeant Taylor:] For possession?
[Prosecutor:] For trafficking?
[Sergeant Taylor:] For trafficking, yes.
[Prosecutor:] How about for possession?
[Sergeant Taylor:] No.

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[Prosecutor:] Did you charge that person with trafficking?
[Sergeant Taylor:] Yes.
[Prosecutor:] How about with 18 rocks of crack cocaine?
[Sergeant Taylor:] I’ve charged trafficking.
[Prosecutor:] And 17 rocks?
[Sergeant Taylor:] I would charge trafficking.
[Prosecutor:] 16 rocks?
[Sergeant Taylor:] I would charge trafficking.
[Prosecutor:] 15?
[Sergeant Taylor:] I would charge trafficking.
. . . .
[Prosecutor:] 	Now, have all of these people possessed the additional
material that you have referenced earlier[,] cell phones, ledgers, crack
pipes, scales?
[Sergeant Taylor:] No.
[Prosecutor:] Have some of them just possessed the rocks themselves?
[Sergeant Taylor:] Yes.
[Prosecutor:] If somebody were to have 19 rocks, 16 rocks, and have
that in conjunction with multiple cell phones—well, let me ask you, have
you ever encountered somebody who was similarly situated?
[Sergeant Taylor:] Yes.

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[Prosecutor:] And have you charged them with a crime?
[Sergeant Taylor:] Yes.
[Prosecutor:] What was the crime?
[Sergeant Taylor:] Trafficking.
[Prosecutor:] Why did you charge them with trafficking?
[Sergeant Taylor:] 	Because I . . . felt that was the proper charge; the
totality of the evidence, the amount, and the other circumstances
surrounding.
[Prosecutor:] What are some of those other circumstances?
[Sergeant Taylor:] The way my interview would go with them. Again,
the other evidence found. 	If they’re—sometimes I would find large
amounts of money. 	I would find, you know, packaging or phones or
scales or anything like that.
{27} 	Defendant asserts that Sergeant Taylor testified that “anyone possessing more
than five rocks of crack cocaine should be and would be arrested and charged as a
narcotics trafficker[.]” And, based on that premise, Defendant argues that Sergeant
Taylor’s testimony was “the equivalent of testifying as a matter of law, rather than as
a matter of fact.” Defendant then asserts that this testimony was improper because
“expert witness[ testimony] is, in general, confined to matters of fact, as distinguished
from matters of law[.]” Beal v. S. Union Gas Co., 66 N.M. 424, 437, 349 P.2d 337,
346 (1960) (internal quotation marks and citation omitted).

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{28} 	We do not agree with Defendant’s interpretation of Sergeant Taylor’s
testimony. Contrary to Defendant’s assertion, Sergeant Taylor did not testify as to
what “should” or “would” happen to anyone in possession of more than five rocks of
cocaine; rather, her testimony was based on her past experiences and related to
charging decisions that she had made as an arresting officer, based on the
circumstances then before her. 	Thus, rather than testifying as to a matter of law,
Sergeant Taylor related her field experience to assist the jury in determining
Defendant’s intent. Such testimony did not exceed the bounds of admissible expert
testimony. 	See, e.g., State v. Grant, 722 N.W.2d 645, 648 (Iowa 2006) (“[I]n
controlled-substance prosecutions[,] opinion testimony by law enforcement personnel
experienced in the area of buying and selling drugs may be offered as evidence for
purposes of aiding the trier of fact in determining intent.”). Defendant’s argument is
based on a mistaken view of Sergeant Taylor’s testimony, and the argument provides
no basis for reversal.
{29} 	Defendant further argues that as a matter of law, Sergeant Taylor’s testimony
exceeded the boundaries of allowable expert testimony because “[a] police officer
should not be allowed to testify that a defendant is guilty of the crime of trafficking.”
In the context of officers testifying as to personal use versus possession of narcotics,
the distinction between admissible versus inadmissible expert testimony depends on

20
whether the officer testified directly as to the defendant’s intent. 	See, e.g., State v.
Vilalastra, 540 A.2d 42, 44, 47 (Conn. 1988) (explaining that the prosecution “could
have solicited [a detective’s] opinion concerning whether [evidentiary] items are
commonly used by drug sellers, but it was improper to inquire whether in [his] expert
opinion the defendant was a drug seller or user based on the items found”). Thus, a
number of courts have held that it is impermissible for an officer, testifying as an
expert or otherwise, to state their opinion of the defendant’s guilt. 	See, e.g., id.
(explaining that it was improper for an officer testifying as an expert to offer an
“opinion [as to whether] the defendant was a drug seller or user”); Fluellen v. State,
703 So. 2d 511, 513 (Fla. Dist. Ct. App. 1997) (concluding that the trial court erred
in permitting an officer to testify that “the quantity of cocaine possessed by the
[defendant] indicated that [he] possessed the drug with the intent to sell, rather than
for personal use”); State v. Ogg, 243 N.W.2d 620, 621 (Iowa 1976) (holding that it
was error for the court to permit an officer to testify that the amount of LSD in the
defendant’s possession exceeded what one might possess for personal use); see also
See State v. Ashley, 1997-NMSC-049, ¶¶ 18-19, 124 N.M. 1, 946 P.2d 205 (reversing
the defendant’s bigamy conviction based, in part, on the testimony of the non-expert
investigating officer who essentially concluded that based on the facts of the
defendant’s case, he believed the defendant to be guilty of the crime of bigamy).

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{30} 	On the other hand, an officer may testify as an expert and offer his or her
opinion as to a trafficking amount versus personal use amount of narcotics. See, e.g.,
People v. Atencio, 140 P.3d 73, 76 (Colo. App. 2005) (permitting an officer to testify
as an expert regarding the distinction between personal use amounts versus
distribution amounts of cocaine and methamphetamine); Melton v. State, 824 So. 2d
948, 950 (Fla. Dist. Ct. App. 2002) (stating that it was permissible for an officer
testifying as a “street-level” narcotics expert to testify that a typical user carries one
or two pieces of crack cocaine, while a typical seller carries anywhere from one to
fifty pieces (internal quotation marks omitted)); Yates v. State, 699 S.E.2d 43, 44 (Ga.
Ct. App. 2010) (“A qualified expert may offer opinion testimony regarding his
knowledge of the amount of crack cocaine one would generally possess for personal
use or the amount which might evidence distribution.”).
{31} 	Defendant argues that Sergeant Taylor invaded the province of the jury by
testifying that “someone similarly situated to Defendant should be charged with . . .
trafficking.” (Internal quotation marks omitted.) Thus, Defendant argues, Sergeant
Taylor’s testimony was similar to the impermissible testimony discussed in Ashley,
Vilalastra, Fluellen, and Ogg. We disagree.
{32} 	Read in context, Sergeant Taylor testified that she had, in her experience as an
officer, charged unnamed arrestees with trafficking when they had sixteen to nineteen

22
rocks of cocaine. She testified that her charging decisions in those cases were based
on the circumstances, including interviews of the arrestees, which led her to believe
trafficking was an appropriate charge. She did not relate those cases to Defendant’s
case. 	Sergeant Taylor was not asked, nor did she offer, her opinion as to whether
Defendant was trafficking cocaine. 	For that reason, her testimony is more aptly
compared with the testimony held to be admissible by the courts in Atencio, Melton,
and 	Yates. 	Defendant has not provided on-point or persuasive authority to
demonstrate that testimony comparable to Sergeant Taylor’s testimony constitutes
reversible error. Accordingly, Defendant has provided no basis for reversal.
{33} 	Moreover, our Rules of Evidence permit experts to testify on matters that
“embrace[]” ultimate issues of fact. Rule 11-704 NMRA (stating that “[a]n opinion
is not objectionable just because it embraces an ultimate issue”); State v. Lopez, 84
N.M. 805, 810, 508 P.2d 1292, 1297 (1973) (“Testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” (internal quotation marks and citation
omitted)). Here, Sergeant Taylor did not offer an opinion as to the ultimate issue of
fact—that is, whether Defendant had an intent to distribute the cocaine to another. To
the extent that her testimony embraced the ultimate issue by educating the jury in
regard to what factors, in her experience, warranted a trafficking charge, it was

23
nevertheless admissible. See Rule 11-704; see also Torres, 2005-NMCA-070, ¶ 32
(recognizing that an officer’s expert testimony is admissible “even if it touches upon
an ultimate issue” (internal quotation marks and citation omitted)); Atencio, 140 P.3d
at 75-76 (stating that an officer testifying as an expert witness did not invade the
province of the jury by stating that the amount of drugs seized from the defendant was
consistent with an intent to distribute, because the officer did not testify that the
defendant intended to distribute them).
{34} 	Sergeant Taylor’s testimony did not detract from the jury’s ability to
independently draw conclusions based on all of the evidence presented at trial. That
evidence included Defendant’s counsel’s vigorous cross-examination of Sergeant
Taylor, and it also included the presentation of Defendant’s own expert, a former
crack cocaine addict qualified to testify as to what amount of crack he purchased for
his personal use. The presentation of a rebuttal expert witness and vigorous cross-
examination are the “traditional and appropriate means of attacking shaky but
admissible evidence.” State v. Anderson, 118 N.M. 284, 302, 881 P.2d 29, 47 (1994)
(internal quotation marks and citation omitted). 	The jury was free to accept or to
reject Sergeant Taylor’s testimony. Torres, 2005-NMCA-070, ¶ 32. The district court
did not abuse its discretion in admitting Sergeant Taylor’s testimony.

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{35} 	On a final note, in regard to the admissibility of Sergeant Taylor’s testimony,
we acknowledge that there is somewhat of a fine line between (1) testimony as to
typical users and traffickers based on the amount of drugs in their possession, and (2)
testimony as to whether the amounts in the possession of the subject defendant
indicated a purpose to traffic and not to use. We further recognize that using language
such as “embraces an ultimate issue” may not adequately assist the district court in
this context. 	Based on the amounts of drugs possessed, it is difficult to determine
when an expert crosses the fine line constituting error when testifying about whether
the person possessing drugs intends to use or traffic those drugs.
{36} 	We nevertheless see no reason why a qualified law enforcement expert should
not be permitted to testify as to his or her training, knowledge, and experience relating
to indicia and likelihood of possession for trafficking rather than solely for use.
Defendant concedes that the “amount of drugs for use versus for trafficking [is] not
typically within a layperson’s knowledge[.]” 	A defendant can cross-examine and
supply a counterexpert or other witness, as Defendant did in this case.
{37} 	The type of testimony given by Sergeant Taylor as to typical circumstances in
law enforcement can assist the jury in understanding intent as to drug use versus drug
trafficking. 	Although appearing to be close to the line as it necessarily is when
testifying to typical circumstances and an officer’s charging rationale, we cannot say

25
that Sergeant Taylor’s expert testimony crossed the line into the forbidden territory
of an ultimate jury determination of Defendant’s guilt or innocence.
C. 	Closing Argument
{38} 	Defendant argues that the “error in allowing [Sergeant] Taylor to testify . . . was
compounded by the State’s reliance on the testimony during closing argument.” We
do not find this argument persuasive. First, we have already concluded that Sergeant
Taylor’s testimony did not constitute reversible error. And second, Defendant did not
preserve this argument for appeal by making this argument in the district court. See
State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that to
preserve an issue for appeal, a defendant must make a timely objection that
specifically apprises the district court of the nature of the claimed error and invokes
an intelligent ruling thereon); State v. Salazar, 2006-NMCA-066, ¶ 20, 139 N.M. 603,
136 P.3d 1013 (declining to consider an appellate argument concerning alleged error
during closing argument where there had not been a timely objection in the district
court). Accordingly, this argument provides no basis for reversal.
D. 	The Rule 11-403 NMRA Argument
{39} 	Pursuant to Rule 11-403, the district court “may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

26
presenting cumulative evidence.” 	Defendant argues that the value of Sergeant
Taylor’s testimony was “far outweighed by its prejudicial effect.” She argues that the
testimony “was at best confusing; at worst, it was misleading.” More specifically,
Defendant claims that Sergeant Taylor
was presented to the jury as though she had some official authority to
dictate a ‘magic number’ of rocks of crack [cocaine] that would support
an inference of trafficking. 	Even if no other evidence was found,
[Sergeant] Taylor testified[] she would arrest anyone in possession of the
number of rocks of crack [cocaine] that were found in Defendant’s
pickup. . . . [T]hus suggest[ing] that no real work was necessary for the
jury.
Defendant does not provide a citation to the record indicating that this argument was
preserved for our review. See Rule 12-213(A)(4) NMRA (requiring the brief in chief
to explain how the issue was preserved and to include citations to the record,
transcript, or exhibits relied on). 	Nor 	do we, from our review of the transcript,
believe that Defendant objected to Sergeant Taylor’s testimony on the ground that it
was more prejudicial than probative. See Varela, 1999-NMSC-045, ¶ 25 (stating that
in order to preserve an issue for appeal, the defendant must make a timely objection
that specifically apprises the district court of the nature of the claimed error and
invokes an intelligent ruling thereon). 	Accordingly, we will not further consider
Defendant’s Rule 11-403 argument.
V. 	Defendant’s Ineffective Assistance of Counsel Argument

27
{40} 	Defendant argues that she received ineffective assistance of counsel. First, she
faults her counsel for having “agreed to withdraw a lesser[-]included offense
instruction on possession of cocaine, allowing the jury to decide either to convict
Defendant of trafficking or acquit her entirely.” 	Second, she faults her counsel for
having allegedly advised her to leave a drug rehabilitation program to spend time with
her family because, according to Defendant, her counsel “believed a sentence of
incarceration was inevitable, and therefore Defendant ‘might as well’ leave the
rehabilitation program.” 	Defendant further argues that her decision to leave the
rehabilitation program angered the district court, and her conditions of release were
revoked and she was remanded to jail. “Claims of ineffective assistance of counsel
are reviewed de novo.” State v. Sotelo, 2013-NMCA-028, ¶ 31, 296 P.3d 1232, cert.
denied, 2013-NMCERT-001, 299 P.3d 863.
{41} 	To prove ineffective assistance of counsel, Defendant must show (1) that
counsel’s performance fell below that of a reasonably competent attorney, and (2) that
she was prejudiced by the deficient performance. State v. Hester, 1999-NMSC-020,
¶ 9, 127 N.M. 218, 979 P.2d 729. 	Defendant fails to show how her counsel’s
allegedly deficient performance met either of the two requirements for a prima facie
showing of ineffective assistance of counsel. Accordingly, we see no basis on which
to conclude that her counsel was ineffective. 	Notwithstanding our determination,

28
Defendant is not precluded from pursuing her ineffective assistance of counsel claim
through habeas corpus proceedings. See Torres, 2005-NMCA-070, ¶ 13 (explaining
that where the defendant fails to make a prima facie case of ineffective assistance of
counsel on appeal, the claim may be raised in habeas corpus proceedings).
CONCLUSION
{42} 	We affirm Defendant’s conviction of trafficking, by possession with intent to
distribute.
{43} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
TIMOTHY L. GARCIA, Judge