May 14, 2009 – State of New Mexico v. Pablo Delgado, No. 27,192

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 14, 2009
NO. 27,192
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PABLO DELGADO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Silvia Cano-Garcia, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney 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 Pablo Delgado appeals his convictions of possession of cocaine and
tampering with evidence. With regard to the possession charge, a forensic chemist
from the New Mexico Department of Public Safety Crime Lab (Crime Lab) testified
concerning the analyses of another chemist from the Crime Lab based on the reports
of his test results. 	The district court received one of the reports in evidence as a
business record. 	We conclude that the report was properly received as a business
record and that the chemist’s testimony did not violate Defendant’s right of
confrontation. 	We further conclude that there was sufficient evidence to convict
Defendant of both charges. We therefore affirm.
BACKGROUND
{2} 	In their bike patrol on June 18, 2004, at approximately 10:00 p.m., Officers
Irma Palos and Wavie Brown of the Las Cruces Police Department observed
Defendant in the vicinity of mobile homes. 	He was bent down behind a wooden
fence. 	Officer Palos called out to Defendant. 	Defendant stood up, looked at the
officers, and walked quickly away from them toward a nearby storage shed. Officer
Palos called out to Defendant to stop. 	She lost sight of Defendant for “a quick
moment” as Defendant walked toward the shed. Defendant then turned around and

2
started walking back to the officers.
{3} 	When Officer Palos asked Defendant what he was doing, Defendant responded
that he was “drinking a beer and talking to his wife on the phone.” 	Officer Palos
testified, however, that the beer can that Defendant was holding was not open, and
there was no one on Defendant’s cell phone. Officer Palos asked Defendant what he
had thrown because, based on his body movements, she believed that he had disposed
of something. Defendant repeated that he was drinking a beer and talking with his
wife on the phone. Officer Cindy McCants, who had arrived at the scene, found a
baggie with a white powdery substance in front of the shed. Officer McCants gave
the baggie to Officer Brown, who showed it to Officer Palos. At that point, without
provocation, Defendant put his hands behind his back and turned around. He asked
if he could make a phone call. 	The officers then detained him. A field test of the
substance indicated that it was cocaine.
CHEMIST’S REPORT
{4} 	At trial, Danielle Elenbaas, a forensic chemist at the Crime Lab, testified that
the Crime Lab is accredited by an accrediting body that inspects the lab every five
years to ensure that it uses current procedures, validated methods, and good science.
She stated that Eric Young, another forensic chemist at the Crime Lab, tested the

3
substance and prepared a report of his analysis. Ms. Elenbaas testified as the records
custodian of Mr. Young’s report. She identified the report and described the routine
process by which it was created. 	She stated that only she and Mr. Young were
authorized to generate such reports on controlled substances. She further stated that
the reports record the results of the tests the chemists performed and that, after the
chemists approve the reports, they provide them to the submitting agency.
{5} 	The State moved for the admission of Mr. Young’s report as a business record.
The district court received the report in evidence over Defendant’s objection. Ms.
Elenbaas testified that the report showed that Mr. Young identified the substance as
1.53 grams of cocaine.
{6} 	On appeal, Defendant argues that the district court erred in receiving the Crime
Lab report in evidence. “We review the admission of evidence under an exception to
the hearsay rule with deference to the trial court’s discretion; we review to determine
whether there has been an abuse of discretion.” State v. McClaugherty, 2003-NMSC-
006, ¶ 17, 133 N.M. 459, 64 P.3d 486, aff’d, 2008-NMSC-044, 144 N.M. 483, 188
P.3d 1234. We will not conclude that the district court “abused its discretion by its
ruling unless we can characterize it as clearly untenable or not justified by reason.”
State v. Mora, 2003-NMCA-072, ¶ 8, 133 N.M. 746, 69 P.3d 256 (internal quotation

4
marks and citation omitted).
{7} 	The district court admitted Mr. Young’s laboratory report into evidence under
the business records exception to the hearsay rule. See Rule 11-803(F) NMRA. Under
the business records exception to the hearsay rule, the following documents are
admissible:
A memorandum, report, record or data compilation, in any form, of acts,
events, conditions, opinions or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness[.]
Id. The rule further provides that the exception is not to be applied if the “source of
information 	or 	the 	method 	or 	circumstances 	of 	preparation 	indicate 	lack 	of
trustworthiness.” 	Id. 	Although the district court expressly received Mr. Young’s
laboratory report in evidence under the business records exception to the hearsay rule,
Defendant primarily focuses his argument on appeal on the public records exception
to the hearsay rule, claiming that the two exceptions are analogous. 	The public
records exception to the hearsay rule permits the admission of “[r]ecords, reports,
statements or data compilations, in any form, of public offices or agencies” that set
forth “the activities of the office or agency” or “matters observed pursuant to duty

5
imposed by law as to which matters there was a duty to report, excluding, however,
in criminal cases matters observed by police officers and other law enforcement
personnel.” Rule 11-803(H)(1)-(2).
{8} 	In State v. Christian, 119 N.M. 776, 778, 895 P.2d 676, 678 (Ct. App. 1995),
limited on other grounds by State v. Ruiz, 120 N.M. 534, 537, 903 P.2d 845, 848 (Ct.
App. 1995), this Court considered the admissibility of a blood alcohol report created
by an employee of the Scientific Laboratory Division of the New Mexico Department
of Health (SLD) under both the business records and public records exceptions to the
hearsay rule. First, we concluded that the report was properly admitted into evidence
under the business records exception. 	Id. at 780-81, 895 P.2d at 680-81. 	We
reasoned that, even though the report in question was made in the furtherance of the
prosecution of the defendant, the testimony given at the trial indicated that the report
was nonetheless made no “differently from any of the thousands of other reports
similarly situated.” Id. at 780, 895 P.2d at 680. Second, we rejected the defendant’s
argument that the admission of the report was improper under the public records
exception. Id. at 782, 895 P.2d at 682. We explained that the defendant’s argument
that the preparer of the report was “law enforcement personnel” for the purposes of
Rule 11-803(H)(2) failed because the laboratory in which the report was created was

6
“not an arm of law enforcement.” Christian, 119 N.M. at 781, 895 P.2d at 681. We
further noted that “even documents prepared by the state police crime laboratory can
satisfy the public records exception where an adequate foundation for reliability is
laid.” Id.
{9} 	We read Christian to be controlling in this case. Defendant offers no argument
against the admission of the report as a business record based on the plain language
of Rule 11-803(F), and our review of the trial transcript reveals that, as in Christian,
a sufficient foundation for that exception was laid and that nothing elicited at trial
indicated that Mr. Young’s laboratory report was not trustworthy. See Christian, 119
N.M. at 780-81, 895 P.2d at 680-81.
{10} 	Notwithstanding the admissibility of the laboratory report as a business record,
Defendant argues that Mr. Young’s laboratory report is inadmissible because Rule 11-
803(H) does not permit the reports of law enforcement personnel to be admitted as
public records. The crux of his argument is that the district court’s admission of the
report was reversible error because it “allow[ed] the State to prove its case through a
report generated by a police agency during the investigation under the guise of an
ordinary business record.” We do not agree for two reasons.
{11} 	First, even if we were to accept Defendant’s assertion that the Crime Lab is a

7
“police agency,” Christian states that “even documents prepared by the state police
crime laboratory can satisfy the public records exception where an adequate
foundation for reliability is laid.” 119 N.M. at 781, 895 P.2d at 681. In reaching this
conclusion, we explained the distinction drawn by some courts between “reports of
police investigations which contain the kind of adversarial and subjective commentary
often found in such documents” and documents “recording routine, objective
observations, made as part of the everyday function of the preparing official or
agency.” Id. at 782, 895 P.2d at 682 (internal quotation marks and citation omitted).
We adopted the reasoning allowing such routine, objective reports as evidence even
though prepared by personnel associated with law enforcement. Id. Defendant offers
no compelling argument that Mr. Young’s laboratory report was not routinely or
objectively prepared or that it was in any way unreliable. See State v. Dedman, 2004-
NMSC-037, ¶ 44, 136 N.M. 561, 102 P.3d 628 (finding that the state met its burden
of showing trustworthiness when there was no evidence that a blood alcohol report
was prepared atypically).
{12} 	Second, in Christian, we also pointed out the consistency of the reasoning
allowing as evidence such reports of routine, objective observations with existing New
Mexico case law. This Court particularly noted our Supreme Court’s observation in

8
State v. Linam, 93 N.M. 307, 308, 600 P.2d 253, 254 (1979), that the purpose of
excluding the reports of law enforcement personnel from admissibility under Rule 11-
803(H) is to ensure that officers who engage in investigative and prosecutorial
activities testify. See Christian, 119 N.M. at 782, 895 P.2d at 682. Defendant argues
in this regard that Mr. Young’s report falls within this category because the Crime Lab
prepares such reports of controlled substances “to help law enforcement agencies
investigate and prosecute cases.” However, although Mr. Young’s laboratory report
was a part of the State’s case, Mr. Young did not engage in investigative or
prosecutorial activities. As Ms. Elenbaas testified, Mr. Young’s responsibility as a
forensic chemist at the Crime Lab with regard to the evidence in this case was to
conduct an analysis and prepare a report following protocols that are reviewed by the
Crime Lab’s accrediting body. See Dedman, 2004-NMSC-037, ¶ 30 (holding that a
process under which a report is prepared that is “routine, non-adversarial, and made
to ensure an accurate measurement” indicated that the report was not investigative or
prosecutorial). The district court did not abuse its discretion in admitting Mr. Young’s
laboratory report into evidence.
RIGHT OF CONFRONTATION
{13} 	Defendant additionally argues that the testimony of Ms. Elenbaas violated his

9
rights under the United States and New Mexico constitutions to confront Mr. Young,
who had conducted the drug analysis and prepared the report. 	Under Crawford v.
Washington, 541 U.S. 36, 53-54, 68 (2004), the state may not introduce a testimonial
statement against a criminal defendant at trial unless it establishes that the declarant
is unavailable to testify at trial and that the defendant had the prior opportunity for
cross-examination. 	Because the State in our case does not assert that it met these
prerequisites of Crawford, the issue before us is solely whether Mr. Young’s
laboratory report was testimonial evidence.
{14} 	The Supreme Court expressly did not “spell out a comprehensive definition”
of “testimonial” in Crawford, but it did indicate that the term did apply to “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” 	Id. at 68; see Davis v. Washington, 547 U.S. 813, 817, 822
(2006) (considering a 911 call and statements made at a crime scene and holding that
“[s]tatements are nontestimonial when made in the course of police interrogation
under 	circumstances 	objectively 	indicating 	that 	the 	primary 	purpose 	of 	the
interrogation is to enable police assistance to meet an ongoing emergency”). As our
Supreme Court pointed out in Dedman, the Supreme Court’s “historical analysis
indicates that the core concern is government officers who are prosecuting or

10
investigating a crime, or interrogating or at least questioning a witness,” and a
Supreme Court footnote described “[i]nvolvement of government officers in the
production of testimony with an eye toward trial” because of the “unique potential for
prosecutorial abuse.” 	Dedman, 2004-NMSC-037, ¶ 29 (alteration in original)
(internal quotation marks and citation omitted).
{15} 	In Dedman, our Supreme Court addressed the issue of testimonial evidence with
regard to a blood alcohol report generated by SLD. Id. ¶¶ 4, 30. It held that the SLD
report was not testimonial for several reasons: 	(1) SLD personnel are not law
enforcement, and the report was not investigative or prosecutorial; (2) even though
SLD prepared the report for trial, the process was “routine, non-adversarial, and made
to ensure an accurate measurement”; (3) the government officer preparing the report
was not preparing testimony for trial; and (4) a blood alcohol report “is very different
from” the examples of testimonial evidence described in Crawford—“prior testimony
at a preliminary hearing, before a grand jury, or at a former trial” and statements taken
during “police interrogations.” 	Id. ¶ 30 (internal quotation marks and citation
omitted).
{16} 	Defendant relies upon the difference between the Crime Lab and SLD to
distinguish Dedman from this case. 	But the fact that Crime Lab chemists are

11
employed by the Department of Public Safety as opposed to the Department of Health
is not dispositive as it is only one factor that we must consider. Moreover, we do not
ascribe it the significance that Defendant urges.
{17} 	Even though the Crime Lab chemists are employed by the Department of Public
Safety, they do not perform the duties of law enforcement officers. See NMSA 1978,
§ 41-4-3(D) (2007) (describing the principal duties of a “law enforcement officer”
under the Tort Claims Act as “to hold in custody any person accused of a criminal
offense, to maintain public order or to make arrests for crimes” (internal quotation
marks omitted)). The Crime Lab chemists are not charged with the responsibility of
investigating or prosecuting crime. They are under the inspection of an accrediting
body, and they use standard operating procedures with validated methods and “good
science” to analyze substances submitted to them and prepare their reports. Although
chemists testify at trial and can reasonably expect that their reports will be used if
there is a trial, their testimony and reports are significantly different from the
testimonial evidence identified in Crawford as representing a confrontation problem.
They are performing the responsibilities of their jobs, and their testing merely
provides proof, or the absence of proof, of an element in a controlled substance case.
{18} 	We therefore conclude, based on our analysis of the factors expressed in

12
Dedman, that Mr. Young’s report was not testimonial evidence under Crawford.
Following Dedman, we must then analyze the evidence as non-testimonial hearsay
under Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other grounds by Crawford,
541 U.S. 36, to determine whether Defendant’s confrontation rights were violated
because he did not have the opportunity to cross-examine Mr. Young. See Dedman,
2004-NMSC-037, ¶¶ 32-34. There is no constitutional violation if the evidence has
demonstrated reliability. See id. ¶ 37. Further, when evidence “falls within a firmly
rooted hearsay exception,” nothing else need be shown to establish reliability.
Roberts, 448 U.S. at 66; Dedman, 2004-NMSC-037, ¶ 37. Mr. Young’s report was
admissible hearsay either as a business record or a public record. 	Both are firmly
rooted exceptions to the hearsay rule. 	Roberts, 448 U.S. at 66 n.8; Dedman, 2004-
NMSC-037, ¶ 37. There was no confrontation violation in this case.
SUFFICIENCY OF THE EVIDENCE
{19} 	Defendant further contends that the evidence was not sufficient to convict him
of either possession of cocaine or tampering with evidence. We conduct our review
for the sufficiency of the evidence by viewing the evidence in the most permissible
way that is favorable to the state. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314,
1319 (1988). 	We resolve all conflicts in the evidence and indulge all permissible

13
inferences from the evidence in favor of the verdict. Id. We ascertain whether there
was substantial evidence to enable any rational factfinder to find that the state
established each element of the crime beyond a reasonable doubt. 	Id.; State v.
Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). The evidence may be direct
or circumstantial. Sutphin, 107 N.M. at 131, 753 P.2d at 1319.
Possession of Cocaine
{20} 	The district court instructed the jury that, to convict Defendant of possession
of cocaine, the jury was required to find that Defendant, on June 18, 2004, had cocaine
in his possession and that he knew or believed it to be cocaine or some other drug or
substance the possession of which is regulated or prohibited by law. See NMSA 1978,
§ 30-31-23(A) (2005). Because constructive possession constitutes possession, see
State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989), the district
court instructed the jury, without objection:
A person is in possession of cocaine when he knows it is on his
person or in his presence, and he exercises control over it.
Even if the substance is not in his physical presence, he is in
possession if he knows where it is, and he exercises control over it.
Two or more people can have possession of a substance at the
same time.
A person’s presence in the vicinity of the substance or his

14
knowledge of the existence or the location of the substance, is not, by
itself, possession.
See UJI 14-3130 NMRA.
{21} 	There is sufficient evidence that Defendant had constructive possession of the
cocaine that Officer McCants found in front of the shed on June 18, 2004. When the
officers approached, Defendant was bent down behind a fence. He stood up, looked
at the officers, and walked away from them at a quick pace toward the shed. He did
not stop when Officer Palos called out to him. The officers lost sight of him for a
moment before he walked back to the officers. Defendant then gave the officers an
explanation about drinking a beer and talking on his cell phone that did not fit with
the officers’ observations. When the cocaine was found, he placed his hands behind
his back and turned around without any request by the officers.
{22} 	The fact that Defendant did not speak English and Officer Palos may have
called out to him in English is inconsequential. Even if Defendant did not understand
the command, the officers observed him stand up, look at them, and quickly walk
toward the shed, where the cocaine was found. 	We are similarly unconvinced by
Defendant’s argument that he did not have exclusive control over the area and that
there were others who lived in the area, including some present within ten to fifteen
feet of the shed. This evidence was before the jury, and the jury nevertheless viewed

15
the evidence differently from Defendant. See Sutphin, 107 N.M. at 131, 753 P.2d at
1319 (stating that we do not reweigh the evidence, “so long as there is sufficient
evidence to support the verdict”). 	Based on all of the circumstances, there was
substantial evidence to support Defendant’s conviction for possession of cocaine. See
State v. Smith, 100 N.M. 352, 354, 670 P.2d 963, 965 (Ct. App. 1983) (stating that
knowledge can be inferred from circumstantial evidence), abrogated on other grounds
by State v. Watkins, 2008-NMCA-060, 144 N.M. 66, 183 P.3d 951.
Tampering with Evidence
{23} 	“Tampering with evidence consists of destroying, changing, hiding, placing or
fabricating any physical evidence with intent to prevent the apprehension, prosecution
or conviction of any person or to throw suspicion of the commission of a crime upon
another.” NMSA 1978, § 30-22-5(A) (2003). The district court instructed the jury
that, to find Defendant guilty of tampering with evidence, the State needed to prove
beyond a reasonable doubt that on June 18, 2004, Defendant hid or placed cocaine,
intending to prevent his apprehension, prosecution, or conviction.
{24} 	There is sufficient evidence to support the tampering with evidence conviction.
After Defendant walked away from the officers, Officer Palos observed his body
movements that to her appeared as if he had disposed of something. When she asked

16
him what he had thrown, Defendant responded that he was drinking a beer and talking
on the cell phone; a response that did not comport with Officer Palos’ observations.
The cocaine was located in the area where Defendant had been. 	Defendant then
placed his hands behind his back and turned around. 	The jury could reasonably
conclude that Officer Palos observed Defendant discard the later-located cocaine.
{25} 	Defendant’s reference to our Supreme Court’s statement in State v. Duran,
2006-NMSC-035, ¶ 13, 140 N.M. 94, 140 P.3d 515, misses the mark. In Duran, the
Court stated that “[w]hile New Mexico has no case law indicating that a tampering
with evidence charge cannot be based solely on circumstantial evidence, our cases
upholding convictions for this charge involve some kind of direct evidence of
tampering.” Id. The evidence that was the subject of the tampering charge was never
found. 	Id. ¶ 15. In contrast, in this case, not only was the evidence found, but the
officers testified to Defendant’s actions linking him to his disposing of the evidence.
CONCLUSION
{26} 	We affirm Defendant’s convictions for possession of cocaine and tampering
with evidence.
{27} 	IT IS SO ORDERED.

17
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_______________________________
CYNTHIA A. FRY, Chief Judge
_______________________________
CELIA FOY CASTILLO, Judge