December 18, 2009 – State of New Mexico v. Juan Oscar Fuentes, No. 28,356

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: December 18, 2009

NO. 28,356

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JUAN OSCAR FUENTES,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth Martinez, District Judge

Gary K. King, Attomey General
Andrea Sassa, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Cory J. Thompson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
CASTILLO, Judge.
{1} 	Juan Oscar Fuentes (Defendant) appeals from his conviction for aggravated
battery with a deadly weapon causing great bodily harm in violation of NMSA 1978,
Section 30-3-5 (1969). Defendant raises two issues on appeal. First, he asserts that
there was insufficient evidence presented to support his conviction. 	Second,
Defendant challenges the testimony of the State’s firearm forensic and tool mark
expert and claims that the district court erred in finding that the science underlying the
expert’s testimony was reliable based solely on the fact that this science is generally
accepted. We affirm.
BACKGROUND
{2} 	On November 21, 2007, at the conclusion of his jury trial, Defendant was
convicted of aggravated battery with a deadly weapon causing great bodily harm in
violation Section 30-3-5. Defendant had already entered a plea of no contest to having
violated NMSA 1978, Section 30-7-16(A) (2001), possession of a firearm by a felon.
Defendant’s conviction and plea stemmed from events occurring in Albuquerque,
New Mexico on September 14, 2006, when Sean Levin (Victim) was shot in the
stomach several times at close range while standing in front of his friend John
Viesterveld’s home. Victim sustained life threatening injuries and is now permanently

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disabled.
{3} 	At Defendant’s trial, the following evidence was presented. Detective Holly
Garcia arrived at the scene of the shooting only a short time after Victim was shot. She
observed Victim lying in Viesterveld’s driveway bleeding from his pelvis area. After
rendering assistance to Victim, Detective Garcia asked if Victim knew the identity of
the shooter. Victim identified Defendant as the shooter.
{4} 	Victim had been a guest at Viesterveld’s house on the date of the shooting.
Viesterveld was vacuuming the interior of his house and had asked Victim to stand on
the front porch of his home during the cleaning. Although Viesterveld was primarily
focused on vacuuming, he observed Defendant’s vehicle pull up to his home.
Viesterveld knew that Defendant and Victim were friends and thus did not divert his
attention from cleaning. 	A few moments later, Viesterveld heard gun shots.
Viesterveld ran to the front door and observed Defendant driving away and Victim
lying in his driveway in a pool of his own blood. 	Viesterveld approached Victim,
asked if he was okay, and immediately went back into his home to contact 911.
During his conversation with the 911 operator, Viesterveld was asked if he knew who
the shooter was. 	Viesterveld relayed this question to Victim who responded that
Defendant had shot him.
{5} 	Viesterveld’s neighbor, Leif Goennsen, was home on the day of the shooting.

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After Goennsen heard the gun shots, he looked out of his door. He saw a blue car
speed by. 	Goennsen was shown State’s Exhibit 11 and 12, photographs of
Defendant’s vehicle, and he confirmed that the car in those photographs appeared to
be the same car he saw speeding past his home immediately after he heard the gun
shots.
{6} 	A day after the shooting, Officer Scott Norris of the Albuquerque Police
Department located Defendant. 	Officer Norris had been provided a description of
Defendant and Defendant’s vehicle at the beginning of his shift and, while on patrol
in his police vehicle, happened to observe Defendant driving his car. Officer Norris
performed a traffic stop and arrested Defendant.
{7} 	Detective Brett Lampiris-Tremba, also of the Albuquerque Police Department,
arrived at the scene of the traffic stop shortly after Officer Norris arrested Defendant.
Detective Lampiris-Tremba had Defendant’s car sealed until a search warrant could
be obtained to enable a search of the vehicle for evidence related to the shooting.
While awaiting issuance of that search warrant, Detective Lampiris-Tremba spoke
with Defendant, who denied owning a firearm. After obtaining the search warrant,
Detective Lampiris-Tremba searched Defendant’s vehicle and discovered a handgun
in a plastic bag underneath the driver’s seat. The handgun was given to the forensic
science unit of the Albuquerque Police Department.

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{8} 	Michael G. Haag, a forensic scientist with the Albuquerque Police Department,
performed firearm forensics and tool mark analysis tests on the handgun, the
projectiles, and the projectile casings recovered at the scene of the shooting to
determine whether the gun found in Defendant’s car was the weapon used in the
shooting of Victim. Haag testified that, in his professional opinion, the gun found in
Defendant’s car was the gun used to shoot Victim to the exclusion of all other guns.
Although his examination of the projectiles proved inconclusive, the projectile casings
recovered from the scene of the crime matched the type of projectile casings required
for the type of weapon found in Defendant’s vehicle, and the markings he observed
on test-fired projectile casings he produced by shooting the gun in his laboratory
matched the markings he observed on the projectile casings recovered from the scene
of the shooting.
{9} 	At trial, Victim presented contradictory testimony. According to Victim, he and
Defendant are close friends. 	They met in prison and both men share Carribean
ancestry, a matter of some significance according to Victim. 	Victim testified that
Defendant was not the shooter, contrary to his statements on the date of the incident.
Instead, Victim described the shooter as an unidentified African-American male with
short black hair in his late twenties or early thirties. Victim testified that he neither
knows the man who shot him nor why this man shot him. While testifying, Victim

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described a letter that he had written to Defendant after the shooting but before
Defendant’s trial. 	In the letter, Victim stated that it was his intention to testify at
Defendant’s trial and explain that Defendant was not the shooter.
{10} 	When asked about the conflict between what Victim told Detective Garcia
immediately after he was shot and his trial testimony, Victim claimed that Detective
Garcia misinterpreted his statement. Victim testified that he spoke Defendant’s name
when Detective Garcia asked who had shot him not because he wished to identify
Defendant as the shooter but for the following reasons: 	(1) he was in shock and
desired the company of his “most loyal, gracious[,] and best friend[]”; (2) he was
concerned that Defendant had also been shot; (3) he wanted to see if Defendant was
in the neighborhood; (4) he needed the presence of a fearless man and Defendant has
the “uncanny” and “intuitive” ability to appear when he is needed.
{11} 	In addition, Victim’s account of the events leading up to the shooting differed
markedly from Viesterveld’s. According to Victim, the following occurred. He and
Viesterveld were both outside Viesterveld’s home. A car appeared and the driver of
the vehicle was pointing a pistol at them. Viesterveld immediately ran inside. Victim
concluded that he needed to protect Viesterveld. Victim began walking towards the
car. 	As he approached the vehicle and neared the end of Viesterveld’s driveway,
Victim was shot repeatedly.

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DISCUSSION
{12} 	Defendant raises two issues on appeal. 	First, he claims that there was
insufficient evidence to support his conviction for aggravated battery. As part of this
argument, Defendant contends Victim’s statement to Detective Garcia—the statement
Victim made immediately after he was shot and during which he identified Defendant
as the shooter—was hearsay and improperly admitted as substantive evidence.
Second, 	Defendant 	contends 	that 	the State’s 	firearm expert’s 	testimony 	was
improperly admitted. 	Citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), Defendant asserts
that the reliability of the science underlying Haag’s testimony was not established. We
begin with a review of the evidence.
Sufficiency of the Evidence
{13} 	“When reviewing the sufficiency of the evidence, we view the evidence in the
light most favorable to the State; we resolve all conflicts and indulge all permissible
inferences in favor of the verdict.” State v. Davis, 2009-NMCA-067, ¶ 18, 146 N.M.
550, 212 P.3d 438 (internal quotation marks and citation omitted). 	“The relevant
inquiry is whether substantial evidence exists of either a direct or circumstantial nature
to support a verdict of guilty beyond a reasonable doubt with respect to each element
of a crime charged.” Id. (internal quotation marks and citation omitted). “Substantial

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evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d
829 (filed 1998). “On appeal, we will not reweigh the evidence nor substitute our
judgment for that of the fact finder provided that there is sufficient evidence to support
the verdict.” 	Davis, 2009-NMCA-067, ¶ 18 (internal quotation marks and citation
omitted).
{14} 	At the close of Defendant’s trial, the jury was instructed that in order to find
Defendant guilty of aggravated battery with a deadly weapon causing great bodily
harm, they were required to find that:
1. 	[D]efendant touched or applied force to [Victim] by
shooting [Victim] with a firearm;
2. 	[D]efendant intended to injure [Victim];
3. 	[D]efendant caused great bodily harm to [Victim] or acted
in a way that would likely result in death or great bodily harm to
[Victim];
4. 	This happened in New Mexico on or about the 14th day of
September, 2006.
This instruction properly sets forth the essential elements of a violation of Section 30-
3-5(C). 	See UJI 14-323 NMRA (Jury instructions, aggravated battery with great
bodily harm); UJI 14-322 NMRA (Jury instructions, aggravated battery with a deadly
weapon). Accordingly, we refer to this instruction as a guide in determining whether
substantial evidence exists to support the jury’s verdict with respect to each essential
element of this offense. We rely on the detailed description of the evidence presented

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in the background section of this opinion.
{15} 	Substantial evidence was presented that Defendant shot Victim. Viesterveld,
after hearing gun shots, went outside and saw Defendant fleeing and Victim on the
ground severely injured. He testified that Victim informed him that Defendant was
the shooter. Detective Garcia was similarly informed by Victim that Defendant shot
him. Haag testified that the gun found in Defendant’s vehicle was the same gun used
in the shooting of Victim. Goennsen testified that a car identical to Defendant’s sped
away from the scene of the shooting.
{16} 	As to intent, the jury could infer that the shooting was intentional based on the
fact that Defendant drove up to Viesterveld’s house and that Defendant was shot
multiple times at close range. 	The severity of Victims injuries supports the jury’s
conclusion that Defendant caused great bodily harm to Victim. There is no dispute
that this incident occurred in New Mexico on or about September 14, 2006.
{17} 	The majority of Defendant’s arguments regarding the sufficiency of evidence
concern the weight Defendant believes should have been attributed to particular
evidence and not whether substantial evidence exists to prove each essential element
of the offense for which he was convicted. Defendant emphasizes the significance of
those parts of the evidence supporting the theory that he was not the shooter.
Conversely, Defendant de-emphasizes the evidence that supports the theory that he

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was the shooter. Finally, Defendant attacks the credibility of certain witnesses, those
whose testimony supports the conclusion that Defendant shot Victim. Such arguments
do little to demonstrate that the evidence submitted at trial was insufficient to convict
Defendant of the offense charged. Rather, this form of argument merely highlights
the all-important role of the jury: “[i]t is for the jury, and not for us, to determine the
credibility of the witnesses and the weight to be given their testimony.” 	State v.
Torres, 78 N.M. 597, 598, 435 P.2d 216, 217 (Ct. App. 1967).
{18} 	At Defendant’s trial, the jury was asked to consider conflicting accounts of the
events surrounding the shooting of Victim. 	Based on the verdict, the jury plainly
chose to credit Detective Garcia, Viesetveld, Goennsen, and Haag’s testimony and the
account that testimony supported, i.e., that Defendant was the shooter. We will not
disturb that determination. See State v. Vigil, 87 N.M. 345, 350, 533 P.2d 578, 583
(1975) (“[The fact finder] can reject the defendant’s version of the incident.”).
{19} 	Defendant additionally challenges admission of Detective Garcia’s testimony
that Victim told her—immediately after being shot—that Defendant shot him.
Defendant asserts this evidence was erroneously admitted as substantive evidence.
According to Defendant, Victim’s statement to Detective Garcia was hearsay and
admissible only as a prior inconsistent statement and not as substantive evidence, i.e.,
for the truth of the matter asserted. We disagree. The district court did not abuse its

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discretion in admitting Victim’s statement as substantive evidence. 	See State v.
Salgado, 1999-NMSC-008, ¶ 5, 126 N.M. 691, 974 P.2d 661 (“This Court reviews the
trial court’s determination of whether testimony is within exceptions to the hearsay
rule for an abuse of discretion.”). Victim’s statement to Detective Garcia was clearly
within the scope of the excited utterance exception to the hearsay rule. 	See id. ¶ 9
(concluding that a shooting victim’s statement to an officer occurring immediately
after the victim was shot and identifying the person who shot him was properly
characterized and admitted by the district court as an excited utterance; the victim
made the statement relating to the startling event of being shot while clearly under the
stress of excitement caused by the shooting).
Alberico-Daubert Analysis
{20} 	Defendant’s second contention on appeal concerns the testimony of Haag, the
State’s firearm forensic and tool mark analysis expert. Citing Daubert and Alberico,
Defendant asserts that the reliability of the science underlying Haag’s testimony was
not established and, thus, Haag’s testimony was improperly admitted.
{21} 	The parties differ over which standard governs our review of Defendant’s
second contention. 	Defendant argues that we review this matter for an abuse of
discretion, whereas the State argues that our review is de novo. 	In support of its
contention that our review of the present matter is de novo, the State cites State v.

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Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20, and the following language
from that case: “the initial determination of whether to apply the Alberico-Daubert
standard entails a conclusion of law that is subject to de novo review.” The parties do
not dispute that the standard articulated in Alberico-Daubert is the standard for
determining the admissibility of Haag’s testimony. Rather, the parties dispute whether
that standard was properly applied. Thus, there is no question regarding whether the
Alberico-Daubert standard is applicable. 	The appropriate standard of review,
therefore, is that which controls when the Alberico-Daubert standard is applicable.
{22} 	In Alberico, the New Mexico Supreme Court adopted the requirement set forth
in Daubert that the proponent of expert opinion testimony must show that the expert’s
opinion has “‘a reliable basis in the knowledge and experience of his discipline.’”
Alberico, 116 N.M. at 167, 861 P.2d at 202 (quoting Daubert, 509 U.S. at 592). After
adopting this standard, the New Mexico Supreme Court then clarified the “standard
for reviewing the admission of expert opinion testimony at trial.” Alberico, 116 N.M.
at 169, 861 P.2d at 204. The Court stated that “[t]he rule in this State has consistently
been that the admission of expert testimony or other scientific evidence is peculiarly
within the sound discretion of the trial court and will not be reversed absent a showing
of abuse of that discretion.” Id. at 169, 861 P.2d at 205. Accordingly, we conclude
that the abuse of discretion standard governs our review of Defendant’s second

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contention. We now turn to the law governing the issue.
{23} 	The admission of expert testimony in New Mexico is governed by Rule 11-702
NMRA, which provides the following: “[i]f scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training or
education may testify thereto in the form of an opinion or otherwise.” 	Existing
precedent makes clear that there are “three prerequisites in Rule 11-702 for the
admission of expert testimony: (1) experts must be qualified; (2) their testimony must
assist the trier of fact; and (3) their testimony must be limited to the area of scientific,
technical, or other specialized knowledge in which they are qualified.” Torres, 1999-
NMSC-010, ¶ 23; accord Alberico, 116 N.M. at 166, 861 P.2d at 202. Defendant’s
assertion that Haag’s testimony was improperly admitted because the reliability of the
science underlying Haag’s testimony was not established implicates the third
prerequisite. 	See Alberico, 116 N.M. at 166, 861 P.2d at 202 (explaining that the
reliability requirement articulated in Daubert concerns the third of the Rule 11-702
requirements).
{24} 	Under the third prerequisite of Rule 11-702, the proponent of expert opinion
testimony must show that the expert’s opinion has “‘a reliable basis in the knowledge
and experience of his discipline.’” 	Alberico, 116 N.M. at 167, 861 P.2d at 202

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(quoting Daubert, 509 U.S. at 592). Expert testimony involving scientific knowledge
is not admissible “unless the party offering such testimony first establishes the
evidentiary reliability of the scientific knowledge.” Torres, 1999-NMSC-010, ¶ 24
(citing Alberico, 116 N.M. at 166-69, 861 P.2d at 202-05). In Daubert, the United
States Supreme Court set forth a nonexclusive list of factors to assist courts in their
assessment of whether expert testimony involving scientific knowledge has a reliable
basis. Daubert, 509 U.S. at 593-94. This includes:
(1) whether a theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known [or] potential rate of error in using a particular
scientific technique and the existence and maintenance of standards
controlling the technique’s operation; and (4) whether the theory or
technique has been generally accepted in the particular scientific field.
State v. Anderson, 118 N.M. 284, 291, 881 P.2d 29, 36 (quoting Daubert, 509 U.S.
at 593-94) (internal quotation marks omitted). 	This legal framework guides our
review of Defendant’s arguments.
{25} 	The district court ruled that the science underlying the firearm forensic and tool
mark analysis techniques employed in this matter was reliable based solely on its
finding that this type of science has generally been accepted. 	No evidence was
submitted concerning the remaining factors set forth in Daubert, i.e., the testability of
the science, whether the science has been subjected to peer review and publication,
and whether there was a known rate of error associated with using the science. In

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Daubert, the United States Supreme Court “rejected ‘general acceptance’ as the sole
criterion for admissibility,” see Paul C. Giannelli, et al., 2 Scientific Evidence §
1.08[b] (4th ed. 2007), and the New Mexico Supreme Court explained in Alberico that
“a particular degree of acceptance of a scientific technique within the scientific
community is neither a necessary nor a sufficient condition for admissibility.”
Alberico, 116 N.M. at 167, 861 P.2d at 203. Nevertheless, for the reasons explained
below, we hold that the district court did not err.
{26} 	In State v. Lente, 2005-NMCA-111, ¶ 5, 138 N.M. 312, 119 P.3d 737, we
adopted the following proposition which was established by the United States
Supreme Court in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999): “[A]
trial court retains discretionary authority needed both to avoid unnecessary reliability
proceedings in ordinary cases where the reliability of an expert’s methods is properly
taken for granted, and to require appropriate proceedings in the less usual or more
complex cases where cause for questioning the expert’s reliability arises.” (internal
quotation marks omitted). We are persuaded that, in the present matter, the district
court appropriately exercised its discretionary authority in finding that the reliability
of the science in question could properly be taken for granted. The science underlying
the firearm forensics and tool mark analysis techniques employed in the present matter
has long been held reliable in New Mexico. See State v. Martinez, 52 N.M. 343, 350,

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198 P.2d 256, 260 (1948) (observing that modern science has established that “[t]he
tracing of a bullet to the particular weapon from which it was discharged, by
identifying the marks on the bullet with the physical features of the weapon” is almost,
if not an exact science). Furthermore, as is made clear by the federal authority cited
by Defendant, the reliability of this science is also widely recognized by the federal
courts. 	See United States v. Monteiro, 407 F. Supp. 2d 351, 364 (D. Mass. 2006)
(“For decades, both before and after the Supreme Court’s seminal decisions in
Daubert and Kumho Tire [Co.], admission . . . of firearm identification testimony . .
. has been semi-automatic; indeed, no federal court has yet deemed it inadmissible.”).
{27} 	We acknowledge that the federal district court in Monteiro commented that
“[s]torm clouds . . . are gathering” over what appears to be a near universal
assumption regarding the reliability of the science underlying firearm forensics and
tool mark analyses. 	See Monteiro, 407 F. Supp. 2d at 364. 	However, Defendant
failed to persuade us that the district court erred when it assumed the reliability of the
science underlying the firearm forensics and tool mark analysis techniques employed
by Haag in the present matter. 	In both his written and oral motions requesting a
Daubert hearing, Defendant did not set forth any basis for calling into question the
reliability of the science underlying those techniques. 	Instead, Defendant merely
asserted that the science underlying those techniques was unreliable without any basis

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to support such a claim. As we explained above, such an unsubstantiated assertion is,
in our view, insufficient to require a district court to hold a Daubert reliability hearing
where, consistent with Kumho Tire Co. and Lente, the reliability of the science in
question is properly taken for granted. 	Kumho Tire Co., 526 U.S. at 152; Lente,
2005-NMCA-111, ¶ 5.
{28} 	Where the science underlying an expert’s testimony may properly be taken for
granted because the reliability of the science in question has long been accepted, a
defendant must make an affirmative showing that there is some reason to doubt the
reliability of that science before a district court is obligated to require a reliability
hearing. No such showing was made in the present matter. Accordingly, we hold that
the district court did not abuse its discretion in denying Defendant’s request for a
reliability hearing. The district court’s decision was neither “a discretionary decision
. . . premised on a misapprehension of the law,” N.M. Right to Choose/NARAL v.
Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (internal quotation
marks and citation omitted), nor “clearly contrary to the logical conclusions demanded
by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122
N.M. 618, 930 P.2d 153.
{29} 	At the very end of his brief-in-chief, Defendant cites Rule 11-403 NMRA and
asserts that “expert opinions that otherwise meet the admissibility requirements may

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still be excluded by applying Rule [11-]403.” The mere assertion of an evidentiary
rule is not argument. Defendant has neither explained how Rule 11-403 applies in this
matter nor developed a factual basis that would allow us to evaluate this claim. As
such, we will not review this argument on appeal. 	See Headley v. Morgan Mgmt.
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (observing that we do
not review unclear or undeveloped arguments which require us to guess at what
parties’ arguments might be).
CONCLUSION
{30} 	For the foregoing reasons, we affirm.
{31} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge

WE CONCUR:

ROBERT E. ROBLES, Judge

TIMOTHY L. GARCIA, Judge

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