June 21, 2010 – State of New Mexico v. Pablo Delgado, No. 27,192

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _June 21, 2010

NO. 27,192

STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
PABLO DELGADO,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Silvia Cano-Garaa, District Judge
Gary K. King, Attomey General
Ann M. Harvey, Assistant Attomey General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant appeals his convictions for possession of cocaine and tampering with
evidence. On May 14, 2009, we issued an opinion affirming the convictions, State v.
Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828. 	The Supreme Court
granted a writ of certiorari, State v. Delgado, 2009-NMCERT-006, 146 N.M. 734, 215
P.3d 43, and subsequently remanded this case to this Court after deciding issues
related to the evidentiary issues in State v. Aragon, 2010-NMSC-008, ¶¶ 9, 32-33, 147
N.M. 474, 225 P.3d 1280. In that case, our Supreme Court held that (1) a forensic
chemist’s report required the testimony of the forensic chemist who prepared it to be
admissible in evidence and (2) testimony concerning the report by another forensic
chemist, when the testifying forensic chemist did not testify about his own opinions,
violated the defendant’s right of confrontation.
{2} 	On remand, we decided this case on our summary calendar in a memorandum
opinion. Defendant has moved the Court, without objection from the State, to publish
the opinion in light of this Court’s May 14, 2009 published opinion. We grant the
motion, withdraw the memorandum opinion issued May 12, 2010, and substitute this
opinion in its stead. 	The facts of this case are fully set forth in the May 14, 2009
opinion.

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{3} 	After remand, we proposed in a summary calendar notice to reverse and remand
to the district court for a new trial on the charges because of improperly admitted
forensic evidence. 	We addressed sufficiency of the evidence as it would grant
Defendant greater relief, but proposed to conclude that the evidence was sufficient.
Both Defendant and the State timely responded to our proposal. Having considered
the arguments, we reverse and remand for a new trial.
{4} 	In our notice, in response to Defendant’s contention that the district court erred
in admitting a forensic laboratory report prepared by Eric Young through the
testimony of Danielle Elenbaas, a forensic chemist who did not conduct the tests
underlying the report, we proposed to conclude that the report could not be admitted
into evidence without Mr. Young’s testimony to support it. 	See Aragon, 2010-
NMSC-008, ¶ 19. We proposed to conclude that the testimony of Ms. Elenbaas about
that report was likewise inadmissible. 	See id. ¶¶ 32-33. 	The State argues that the
testimony of Ms. Elenbaas was sufficient to conclude that she reached an independent
conclusion based on her own review of the data and results. 	We disagree. 	Ms.
Elenbaas’s testimony was similar to Mr. Young’s testimony in 	Aragon: 	an
explanation regarding how the test was performed and approval of the testing
chemist’s results. We find nothing in Ms. Elenbaas’s testimony indicating that she
relied on her own analysis to arrive at her own conclusion. Rather, she was simply

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explaining her approval of Mr. Young’s conclusion. It is not clear that she was stating
her own opinion based on the underlying data and Mr. Young’s notes, but rather
relaying Mr. Young’s opinion and stating her approval of it. We conclude that Ms.
Elenbaas’s testimony regarding Mr. Young’s opinion that what he tested was cocaine
was improperly admitted.
{5} 	The State argues that, even if the report and testimony were improperly
admitted, it was harmless error. The State argues that the error was harmless because
there was other admissible evidence that the substance was cocaine. This evidence
consisted of the testimony of a police detective who performed a field test on the
substance. 	This Court has previously held that the State must prove the scientific
reliability of a drug field test in order for it to be admissible. State v. Morales, 2002-
NMCA-052, ¶ 23, 132 N.M. 146, 45 P.3d 406. It does not appear that there was such
proof in this case. Thus, we cannot rely on a field test of the substance to conclude
that there was a disproportionate volume of permissible evidence to support a finding
that the substance was cocaine. 	We conclude that the erroneous admission of the
forensic report and testimony was not harmless.
{6} 	In our notice, we proposed to conclude that the evidence was sufficient to
support the conviction. See State v. Santillanes, 109 N.M. 781, 782, 790 P.2d 1062,
1063 (Ct. App. 1990) (noting that this Court addresses substantial evidence issues

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because finding that the evidence was insufficient to support the conviction would
afford a defendant greater relief). Defendant’s response points us to evidence that is
simply conflicting. It is for the jury to resolve the conflicts in the evidence. State v.
Lucero, 2010-NMSC-011, ¶¶ 8, 18, 147 N.M. 747, 228 P.3d 1167. 	Further, our
review is for sufficient evidence to support the conviction, not for whether the
factfinder could have reached a different result. In re Ernesto M., Jr., 1996-NMCA-
039, ¶ 15, 121 N.M. 562, 915 P.2d 318. We conclude that the evidence presented at
the trial was sufficient for a reasonable jury to conclude that Defendant possessed
cocaine and that he discarded it intending to prevent his prosecution for such
possession. 	See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998
P.2d 176 (stating the standard of review for sufficiency of the evidence). 	Thus,
Defendant is not entitled to dismissal of the charges, but rather remand for a new trial.
{7} 	For the reasons stated herein and in the third notice of proposed disposition, we
reverse the convictions and remand for a new trial.
{8} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

LINDA M. VANZI, Judge