State v. Beard

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. A-1-CA-35014 5 BRIAN BEARD, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Alisa A. Hadfield, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 Mary Barket, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 VARGAS, Judge.

1 {1} Defendant Brian Beard appeals his convictions for trafficking by possession 2 with intent to distribute; tampering with evidence; resisting, evading, or 3 obstructing an officer; possession of drug paraphernalia; and battery upon a peace 4 officer. Defendant raises the following issues: double jeopardy, improper expert 5 witness testimony, sufficiency of the evidence, improper prosecutorial comment on 6 his right to remain silent, and improper exclusion of his proposed jury instructions. 7 We conclude Defendant’s convictions for both battery upon a peace officer and 8 resisting, evading, or obstructing an officer violate the prohibition against double 9 jeopardy. We therefore remand to the district court to vacate Defendant’s 10 conviction for resisting, evading, or obstructing an officer. We affirm Defendant’s 11 remaining convictions. 12 BACKGROUND 13 {2} Detectives Daniel Porter and Erik Meek witnessed what appeared to be a 14 drug transaction between a female and Defendant. They approached Defendant, 15 who was alone inside his vehicle with the driver-side window down. Unable to exit 16 his vehicle, Defendant kicked Detective Porter twice through the driver-side 17 window, and then attempted to climb through that window. The detectives 18 ultimately arrested Defendant and discovered a bag containing thirteen crack 19 cocaine rocks in between his buttocks. Because this is a memorandum opinion and

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1 the parties are familiar with the facts and procedural history of this case, we 2 reserve discussion of the pertinent facts for our analysis. 3 I. DISCUSSION 4 {3} Defendant argues the following issues on appeal: (1) his convictions for 5 battery upon a peace officer and resisting, evading, or obstructing an officer 6 constitute multiple punishments for the “same offense” as prohibited by the double 7 jeopardy clauses of the United States and New Mexico Constitutions; (2) the 8 district court erred in permitting Detective Porter to testify as an expert witness; (3) 9 the State did not produce sufficient evidence to support Defendant’s convictions 10 for trafficking by possession with intent to distribute and tampering with evidence; 11 (4) the district court erred in failing to grant a mistrial after the State commented 12 on Defendant’s silence; and (5) the district court erred in refusing to give jury 13 instructions on self-defense and unlawfulness related to the battery charges. We 14 address each argument in turn.

15 A. Defendant’s Convictions for Both Battery Upon a Peace Officer and 16 Resisting, Evading, or Obstructing an Officer Violate the Prohibition 17 Against Double Jeopardy

18 {4} The United States and New Mexico Constitutions both prohibit any person 19 from being “twice put in jeopardy” for the same offense. U.S. Const. amend. V; 20 N.M. Const. art. II, § 15. “Defendant need not have preserved this issue in order to 21 raise it on appeal.” State v. Sotelo, 2013-NMCA-028, ¶ 18, 296 P.3d 1232.

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1 “Double jeopardy presents a question of law, which we review de novo.” Id. 2 (internal quotation marks and citation omitted). The double jeopardy prohibition 3 against multiple punishments “relates to two general categories of cases: cases in 4 which a defendant has been charged with multiple violations of a single statute 5 based on a single course of conduct, known as ‘unit of prosecution’ cases; and 6 cases in which a defendant is charged with violations of multiple statutes for the 7 same conduct, known as ‘double-description’ cases.” State v. DeGraff, 2006- 8 NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Defendant raises a double- 9 description argument, arguing he was convicted of battery upon a peace officer and 10 resisting, evading, or obstructing an officer based on the same conduct. 11 {5} Our Supreme Court “synthesized the many varied theories set forth in both 12 New Mexico and federal decisional law to come up with a single test for multiple 13 punishment cases.” State v. Frazier, 2007-NMSC-032, ¶ 14, 142 N.M. 120, 14 164 P.3d 1 (citing Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 15 1223). “The synthesis performed in Swafford resulted in our [Supreme Court’s] 16 adoption of what is generally a two-part inquiry for double-description claims, first 17 analyzing whether the conduct underlying the offenses is unitary, i.e., whether the 18 same conduct violates both statutes, and, if so, proceeding to analyze whether the 19 [L]egislature intended to create separately punishable offenses.” State v. Gutierrez,

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1 2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks 2 and citation omitted). 3 1. Unitary Conduct 4 {6} Defendant asserts his conduct underlying the convictions for battery upon a 5 peace officer and resisting, evading, or obstructing an officer was unitary. 6 “Separate punishments are permissible and conduct is not unitary if the offenses 7 are separated by sufficient indicia of distinctness.” State v. Ford, 2007-NMCA- 8 052, ¶ 12, 141 N.M. 512, 157 P.3d 77 (internal quotation marks and citation 9 omitted). “To determine whether a defendant’s conduct was unitary, we consider 10 such factors as whether the acts were close in time and space, their similarity, the 11 sequence in which they occurred, whether other events intervened, and a 12 defendant’s goals for and mental state during each act.” Id. “The conduct question 13 depends to a large degree on the elements of the charged offenses and the facts 14 presented at trial.” State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 15 1104 (internal quotation marks and citation omitted). “The proper analytical 16 framework is whether the facts presented at trial establish that the jury reasonably 17 could have inferred independent factual bases for the charged offenses.” Id. 18 (internal quotation marks and citation omitted). 19 {7} The conduct underlying Defendant’s convictions for battery upon a peace 20 officer and resisting, evading, or obstructing an officer was unitary. Defendant’s

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1 convictions were based on his actions following Detective Porter and Detective 2 Meek’s approach. After the detectives announced their presence, Defendant 3 attempted to open the driver-side door with his left hand while his right hand was 4 behind his back. To prevent Defendant from exiting the vehicle, Detective Porter 5 pressed his body against the door. Defendant then attempted to open the door with 6 both hands before realizing Detective Porter was holding it shut. With the window 7 already rolled down, Defendant rotated onto his back, put his feet up, and kicked 8 Detective Porter twice in the chest. When Defendant kicked Detective Porter the 9 second time, Detective Porter grabbed Defendant’s legs. 10 {8} Seeing this, Detective Meek ran from the passenger side toward the driver- 11 side to assist Detective Porter. As Detective Meek ran to the driver-side, Defendant 12 “squatted his body” and attempted to either lunge toward the passenger-side door 13 or escape from Detective Porter’s grasp. Detective Meek ran back toward the 14 passenger-side of the vehicle, and Detective Porter continued to hold onto 15 Defendant’s legs. With both legs out of the driver-side window, Defendant reached 16 out of the driver-side window, grabbed the top of his vehicle, and attempted to pull 17 himself through the window. As Defendant was doing this, Detective Porter 18 “pressed him back in the vehicle, trying to . . . hold him back in the vehicle.” 19 Detective Porter then pulled out his gun, at which point Defendant followed 20 Detective Porter’s orders and was ultimately arrested.

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1 {9} The State acknowledges that the record does not establish much separation 2 of time between the acts constituting the bases for the two separate charges. The 3 record further establishes that these events occurred in the same space and in close 4 sequence, and involved the same victim. After being told by the detectives to show 5 his hands, Defendant attempted to exit the vehicle. Unable to do so, Defendant 6 kicked Detective Porter through the open driver-side window, proceeded to lunge 7 toward the passenger-side door, and attempted to escape through the driver-side 8 window. Moreover, the acts were similar. Defendant’s acts of resisting, abusing, 9 and kicking Detective Porter all occurred after Detective Porter announced his 10 presence and told Defendant to show his hands. Thus, all of these acts together 11 could reasonably be viewed as having originated from Detective Porter’s attempt 12 to investigate a possible narcotics transaction while at the same time ensuring his 13 and Detective Meek’s safety. Finally, Defendant’s goals for and mental state 14 during each act support a conclusion that Defendant’s conduct was unitary. All of 15 the acts could reasonably be viewed as stemming from Defendant’s goal of 16 resisting or abusing Detective Porter as he performed his duties. 17 {10} The parties rely on different opinions from this Court to support their 18 argument in favor of or against the conduct being unitary. Compare Ford, 2007- 19 NMCA-052, ¶¶ 13-16 (concluding a defendant’s conduct where he kicked an 20 officer while being arrested and handcuffed was unitary for purposes of battery of

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1 an officer and resisting, evading, or obstructing an officer), with State v. Lopez, 2 2008-NMCA-111, ¶¶ 10, 12-13, 144 N.M. 705, 191 P.3d 563 (concluding a 3 defendant’s flight from, and subsequent returning to and punching of, an officer 4 were not unitary for purposes of battery of an officer and resisting, evading, or 5 obstructing an officer). While the defendant in Ford was being arrested, he 6 attempted to “loosen” the officers’ grip on him and kicked one officer in the leg as 7 they handcuffed him. 2007-NMCA-052, ¶ 13. We held that because the 8 defendant’s acts of resistance and battery occurred close in time and were 9 “similar,” his conduct was unitary. Id. ¶¶ 13-16. In Lopez, an officer pulled over 10 the defendant’s vehicle, at which point the defendant exited his vehicle and ran 11 away. 2008-NMCA-111, ¶ 2. After being chased by the officer for quite some 12 time, the defendant “turned to face the officer, taking a defensive attack 13 posture, . . . [and] punched him twice in the face[.]” Id. ¶¶ 2-3 (internal quotation 14 marks omitted). This Court held the defendant’s “conduct in returning to the 15 officer and punching him in the face constituted a change from his act of fleeing 16 sufficient to determine that the two offenses were not unitary.” Id. ¶ 10. 17 Additionally, we distinguished the “protracted fleeing[,]” stopping, changing 18 course, physically confronting and punching the officer, present in Lopez, from the 19 acts in Ford because the defendant’s acts in Ford of resistance and battery were 20 similar, little time elapsed between the events, and the acts could “arguably be

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1 characterized as incidental contact during an arrest and part of the struggle that 2 constituted the resisting of that arrest[.]” 2008-NMCA-111, ¶¶ 11-12. 3 {11} Before applying either Ford or Lopez to the case at hand, we note that 4 resisting, evading, or obstructing an officer is an offense that may be charged in 5 four alternate ways. See NMSA 1978, § 30-22-1 (1981). Our differing analyses in 6 the two cases appear to be based in part on two different ways of charging under 7 the statute. Compare Ford, 2007-NMCA-052, ¶ 18 (noting that the state charged 8 the defendant with violating Section 30-22-1(D)), and § 30-22-1(D) (“Resisting, 9 evading or obstructing an officer consists of . . . resisting or abusing any . . . peace 10 officer in the lawful discharge of his duties.”), with Lopez, 2008-NMCA-111, 11 ¶¶ 10, 12 (explaining that the defendant engaged in the act of “fleeing,” but not 12 specifying which subsection of Section 30-22-1 the defendant was charged with 13 violating), and § 30-22-1(B) (“Resisting, evading or obstructing an officer consists 14 of . . . intentionally fleeing, attempting to evade or evading an officer of this state 15 when the person committing the act of fleeing, attempting to evade or evasion has 16 knowledge that the officer is attempting to apprehend or arrest him[.]” (emphasis 17 added)). As Defendant was charged with violating Section 30-22-1(D) rather than 18 Section 30-22-1(B), and because his acts were similar, close in time, place, and 19 sequence, and appear to stem from the same goal, Ford is applicable to the case at

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1 hand and we conclude Defendant’s conduct was unitary. We therefore proceed to 2 the second part of the Swafford analysis. 3 2. Legislative Intent 4 {12} “The sole limitation on multiple punishments is legislative intent, and, 5 unless the Legislature clearly authorized multiple punishments, we apply the test 6 articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine 7 that intent.” Franco, 2005-NMSC-013, ¶ 12 (alterations, internal quotation marks, 8 and citations omitted). Blockburger provides, “where the same act or transaction 9 constitutes a violation of two distinct statutory provisions, the test to be applied to 10 determine whether there are two offenses or only one, is whether each provision 11 requires proof of a fact which the other does not.” 284 U.S. at 304. “[T]he proper 12 inquiry focuses upon the elements of the statutes in question—the evidence and 13 proof offered at trial are immaterial.” Swafford, 1991-NMSC-043, ¶ 10. However, 14 our Supreme Court modified the Blockburger test, holding that “[i]f the statute is 15 vague and unspecific, or written in the alternative, courts must consider the 16 [s]tate’s legal theory in assessing whether each provision requires proof of a fact 17 which the other does not.” State v. Swick, 2012-NMSC-018, ¶ 12, 279 P.3d 747 18 (internal quotation marks and citations omitted). When the Legislature has not 19 expressed its intent to punish the same conduct under more than one statute, “and 20 one statute is subsumed by the other, then convictions for both cannot stand.” Id.

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1 ¶ 24. Furthermore, “[a]s Swafford suggested, we treat statutes written in the 2 alternative as separate statutes for purposes of the Blockburger analysis.” Franco, 3 2005-NMSC-013, ¶ 14. 4 {13} As this Court has previously held, Section 30-22-1(D) (resisting, evading or 5 obstructing an officer) is a lesser offense of NMSA 1978, Section 30-22-24 (1971) 6 (battery upon a peace officer). Ford, 2007-NMCA-052, ¶ 19. In Ford, we stated:

7 Under a statutory analysis, Section 30-22-1(D) requires resisting or 8 abusing the officer who is performing his duties. Section 30-22-24 9 refers to the same officer and the same duties. It requires a touching or 10 application of force in a rude, insolent, or angry manner. In a 11 discussion concerning “rude, insolent or angry,” it is indicated [in 12 State v. Padilla, 1983-NMCA-096, 101 N.M. 78, 678 P.2d 706, aff’d 13 in part, rev’d in part on other grounds by 1984-NMSC-026, 101 N.M. 14 58, 678 P.2d 686] that one cannot resist or abuse without being rude, 15 insolent, or angry. The only difference is that battery requires the 16 resisting or abusing to have culminated in a touching, while resisting 17 also prohibits lesser forms of resisting. Stated otherwise, one cannot 18 commit battery on a peace officer without also resisting or abusing 19 that officer contrary to Section 30-22-1(D).

20 Ford, 2007-NMCA-052, ¶ 19; see State v. Diaz, 1995-NMCA-137, ¶ 13, 121 N.M. 21 28, 908 P.2d 258 (“Since a defendant cannot resist or abuse an officer without 22 being rude, insolent, or angry, the difference between Section 30-22-24 and 23 Section 30-22-1(D) is that a violation of the former culminates in an offensive 24 touching while a violation of the latter does not. Thus, a defendant cannot commit 25 peace officer battery without having also resisted or abused an officer.”). 26 Defendant’s conviction for violation of Section 30-22-24 subsumed his conviction

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1 for violation of Section 30-22-1, placing Defendant in double jeopardy. We 2 therefore vacate Defendant’s conviction for resisting, evading, or obstructing an 3 officer.

4 B. The District Court Did Not Err in Permitting Detective Porter to Testify 5 as an Expert Witness

6 {14} Defendant next contends the district court erred in allowing Detective Porter 7 to testify as an expert witness. Defendant’s argument is based on the State’s failure 8 to provide Defendant with advance notice of its intent to call Detective Porter as an 9 expert witness, Detective Porter’s limited experience, and the unreliability of 10 Detective Porter’s expert testimony. 11 1. Notice 12 {15} Defendant first argues that the district court erred in allowing Detective 13 Porter to testify as an expert witness because the State did not provide timely 14 notice of its intent to call the detective as an expert. In its initial disclosure of 15 witnesses, filed on April 12, 2011, the State notified the district court and defense 16 counsel of its intent to call Detective Porter as a witness. Although defense counsel 17 asserted he had not received notice that Detective Porter would be called as an 18 expert, the State filed an amended notice, stating it intended to call Detective 19 Porter as an expert witness “regarding the trafficking of narcotics[,]” more than 20 two weeks before the date of trial. Defendant argues this late disclosure violated 21 both Rule 5-501 NMRA and Rule 5-505 NMRA.

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1 In considering whether late disclosure of evidence requires reversal, a 2 reviewing court will consider the following factors: (1) whether the 3 State breached some duty or intentionally deprived the defendant of 4 evidence; (2) whether the improperly non-disclosed evidence was 5 material; (3) whether the non-disclosure of the evidence prejudiced 6 the defendant; and (4) whether the [district] court cured the failure to 7 timely disclose the evidence.

8 State v. McDaniel, 2004-NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701 (internal 9 quotation marks and citation omitted). 10 {16} To establish the State’s breach of a duty, Defendant relies primarily on Rule 11 5-501 (amended in 2015, effective December 31, 2015), which provides that 12 “within ten (10) days after arraignment . . . the state shall disclose or make 13 available to the defendant . . . a written list . . . identifying any witnesses that will 14 provide expert testimony and indicating the subject area in which they will 15 testify[.]” Rule 5-501(A)(5) (2015). However, the version of Rule 5-501 that was 16 in effect at the time of trial provided no such requirement. See Rule 5-501(A)(5) 17 (2013) (providing that “within ten (10) days after arraignment . . . the state shall 18 disclose or make available to the defendant . . . a written list of the names and 19 addresses of all witnesses which the prosecutor intends to call at trial, together with 20 any statement made by the witness and any record of prior convictions of any such 21 witness which is within the knowledge of the prosecutor”). The State being under 22 no obligation to identify Detective Porter as an expert witness under the rule as 23 written at the time, we cannot say that it violated either Rule 5-501 or Rule

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1 5-505(A) (2014) (“If, subsequent to compliance with Rule 5-501 . . ., and prior to 2 or during trial, a party discovers additional material or witnesses which he would 3 have been under a duty to produce or disclose at the time of such previous 4 compliance if it were then known to the party, he shall promptly give written 5 notice to the other party[.]” (emphasis added)). 6 {17} Relying on Shamalon Bird Farm, Ltd. v. United States Fidelity & Guaranty 7 Co., 1991-NMSC-039, 111 N.M. 713, 809 P.2d 627, and State v. Orona, 1979- 8 NMSC-011, 92 N.M. 450, 589 P.2d 1041, Defendant nonetheless argues that 9 notwithstanding the absence of language related to expert witnesses in the 2013 10 version of Rule 5-501, he suffered prejudice from the inability to pursue a potential 11 line of defense. Shamalon held the district court did not abuse its discretion in 12 excluding the plaintiff’s expert witness’s testimony in part because the plaintiff 13 notified the defense of its intent to call the expert witness late in the proceeding, 14 and the defense would therefore “not have adequate time to prepare their cross- 15 examination and trial strategy[.]” 1991-NMSC-039, ¶¶ 2-3, 7. In reaching its 16 conclusion, however, our Supreme Court relied on Rule 1-026(B)(5)(a) NMRA 17 (1989), which provided that “[a] party may . . . require any other party to identify 18 each person whom the other party expects to call as an expert witness at trial[.]” 19 Shamalon, 1991-NMSC-039, ¶ 7. As we have stated above, Rule 5-501 (2013) 20 included no such language.

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1 {18} Orona provides that “[n]o more prejudice need be shown than that the 2 [district] court’s order may have made a potential avenue of defense unavailable to 3 the defendant.” 1979-NMSC-011, ¶ 8. However, Orona involved the district 4 court’s order preventing defense counsel from interviewing the state’s main 5 witnesses. Id. ¶ 3. The district court took no such action here. Indeed, defense 6 counsel had ample opportunity to interview Detective Porter following the State’s 7 initial disclosure of witnesses. Application of both Shamalon and Orona to the case 8 at hand is therefore misplaced. 9 {19} Defendant further argues the State’s disclosure did not comport with his due 10 process rights, relying on State v. Schoonmaker, 2008-NMSC-010, ¶¶ 6-7, 40, 143 11 N.M. 373, 176 P.3d 1105 (concluding that under the Sixth Amendment to the 12 United States Constitution, the district court should have granted defense counsel’s 13 request to withdraw so the public defender could assume the defense costs), 14 overruled on other grounds by State v. Consaul, 2014-NMSC-030, ¶ 38, 332 P.3d 15 850; State v. Allison, 2000-NMSC-027, ¶¶ 6, 9, 16, 129 N.M. 566, 11 P.3d 141 16 (holding that to avoid “unwarranted prejudice which could arise from surprise 17 testimony[,]” the state had a duty under the rules of criminal procedure to disclose 18 an unrelated arrest report to defense counsel before the defendant testified); and, 19 Reed v. Furr’s Supermarkets, Inc., 2000-NMCA-091, ¶¶ 3-6, 13, 129 N.M. 639, 11 20 P.3d 603 (explaining, in a civil case, that the party’s intentional deception during

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1 discovery undermined the design of the process, which “is to avoid surprise in trial 2 preparation and promote the opposing party’s ability to obtain the evidence 3 necessary to evaluate and resolve the dispute” (alteration, internal quotation marks, 4 and citation omitted)). These cases, however, do not support Defendant’s assertion 5 that the State’s late disclosure violated Defendant’s due process rights. 6 {20} Regardless, even if we assume the State violated some duty, Defendant fails 7 to establish materiality or prejudice. “The test for materiality, the second factor, is 8 whether there is a reasonable probability that, had the evidence been disclosed to 9 the defense, the result of the proceeding would have been different.” State v. 10 Duarte, 2007-NMCA-012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 (internal quotation 11 marks and citation omitted). Similarly, “determining whether the defendant has 12 been prejudiced, the third factor, [requires that] we look at whether the defense’s 13 case would have been improved by an earlier disclosure or how the defense would 14 have prepared differently for trial.” Id. (alteration, internal quotation marks, and 15 citation omitted). Defendant argues the State’s late notice prevented him from 16 more thoroughly exploring Detective Porter’s expertise and proposed expert 17 testimony, and from obtaining his own expert witness. Defendant “has not shown 18 how his cross-examination would have been improved by an earlier disclosure or 19 how he would have prepared differently for trial.” McDaniel, 2004-NMCA-022, 20 ¶ 14 (rejecting the defendant’s argument that his cross-examination or pre-trial

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1 preparation would have improved by an earlier disclosure because “[t]he question 2 of whether additional discovery might have benefitted the defense is pure 3 speculation” (alteration, internal quotation marks, and citation omitted)). 4 Moreover, Defendant filed no motions for a continuance before trial when the State 5 filed its amended witness notice listing Detective Porter as an expert, nor did he 6 seek one when the State tendered Detective Porter as an expert witness during trial. 7 See State v. Barraza, 1990-NMCA-026, ¶ 13, 110 N.M. 45, 791 P.2d 799 8 (concluding a defendant’s failure to seek a continuance undermines his claim of 9 unfair surprise). Defendant has failed to demonstrate either materiality or 10 prejudice. 11 {21} We note that the district court neither explicitly ruled on nor took measures 12 to cure the alleged late disclosure issue. However, in light of the other factors, we 13 decline to reverse Defendant’s convictions on these grounds. 14 2. Detective Porter’s Experience 15 {22} Defendant also argues the district court erred in permitting Detective Porter 16 to testify as an expert in differentiating between personal use and trafficking 17 quantities of crack cocaine because he lacked sufficient experience. Rule 11-702 18 NMRA provides:

19 A witness who is qualified as an expert by knowledge, skill, 20 experience, training, or education may testify in the form of an 21 opinion or otherwise if the expert’s scientific, technical, or other

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1 specialized knowledge will help the trier of fact to understand the 2 evidence or to determine a fact at issue.

3 “A witness may be admitted as an expert under Rule 11-702 upon the satisfaction 4 of three requirements: (1) that the expert be qualified; (2) that the testimony will 5 assist the trier of fact; and (3) that the expert’s testimony concern scientific, 6 technical or other specialized knowledge.” State v. Ruffin, ___-NMCA-___, ¶ 18, 7 ___P.3d___ (No. A-1-CA-35424, Oct. 22, 2018) (internal quotation marks and 8 citation omitted). “We review the [district] court’s admission of expert testimony 9 for an abuse of discretion.” State v. Torrez, 2009-NMSC-029, ¶ 9, 146 N.M. 331, 10 210 P.3d 228. 11 {23} Detective Porter testified that he had worked with the Albuquerque Police 12 Department (APD) since 1997, and was “sworn since 1999.” He worked in the 13 Southeast Area Command for two years, responding to any community needs and 14 doing “some undercover work.” He then spent two years in the Gang Unit in an 15 undercover capacity. While in an undercover capacity, Detective Porter purchased 16 and sold narcotics, including crack cocaine. He testified to selling “small 17 quantities” of crack cocaine and estimated he had made fifty or more purchases of 18 narcotics while undercover. 19 {24} For approximately half a year, Detective Porter worked in the Central 20 Narcotics Team, “which was a mid- to high-level narcotics team” associated with 21 the Region One Task Force. Region One “was a narcotic region working drug

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1 cases within the region of New Mexico.” In that capacity, he would “work any 2 narcotic complaints or investigations” in the task force region. After APD “pulled 3 out of the region task force” Detective Porter “became a detective in a street 4 narcotics team, the Valley Narcotics Unit[,]” for approximately three and a half 5 years. He then worked for approximately two years in the Middle Rio Grande 6 Valley Task Force. Following his time with the Middle Rio Grande Valley Task 7 Force, Detective Porter worked as a task force officer with the Drug Enforcement 8 Administration (DEA) Task Force for approximately one year. As a task force 9 officer, Detective Porter assisted in DEA investigations “for middle to high 10 quantities” of narcotics and started his own investigations. 11 {25} Detective Porter moved to the Criminal Intelligence Unit for approximately 12 two years, where he worked with informants. He spent his last year in the unit as 13 an acting sergeant. Following his time in the Criminal Intelligence Unit, Detective 14 Porter returned to the APD Gang Unit, where he worked with informants and, 15 because of the “connection” between gangs and drugs, he had the opportunity to 16 work on drug cases. He remained in this position at the time of trial. 17 {26} Detective Porter also testified about the training he received related to 18 narcotics, describing the numerous classes and conferences he attended regarding 19 narcotics and the narcotics trade. Detective Porter explained that he attended 20 around one thousand hours of narcotics-related classes. Additionally, he undertook

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1 over three hundred narcotics-related investigations as either a case agent, a co-case 2 agent, or an assisting officer and sometimes “utilize[d] an informant to assist in 3 these investigations[.]” 4 {27} In Detective Porter’s work with informants, whether they were drug dealers 5 or users, they provided him with information about how much they used on a daily 6 basis. He gathered this information so he could “know what they’re buying, how 7 much they’re buying, what they’re using, [and] how much they’re using[.]” 8 Detective Porter would then use this information to ensure an informant’s normal 9 purchases were consistent with those made in “controlled buys,” wherein they 10 would give the informant, typically a drug user, “a specific amount of money for a 11 specific amount of drugs[.]” Detective Porter learned the “going rates for different 12 narcotics[,]” how a purchase is made, and how different drugs are packaged. Based 13 on the evidence of Detective Porter’s background, experience, training, and 14 knowledge in drug transactions, we cannot say that the district court abused its 15 discretion in permitting him to testify as an expert in differentiating between 16 personal use and trafficking quantities. Torrez, 2009-NMSC-029, ¶ 9. 17 3. The Reliability of Detective Porter’s Expert Testimony 18 {28} Defendant argues Detective Porter’s expert testimony was unreliable. In 19 determining initially whether expert testimony is competent under Rule 11-702, 20 “the [district] court must exercise its gate-keeping function and ensure that the

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1 expert’s testimony is reliable.” Torrez, 2009-NMSC-029, ¶ 21. To the extent 2 Defendant argues Detective Porter’s methodology was unreliable, our Supreme 3 Court has made clear that “[t]he requirements that scientific expert testimony be 4 grounded in valid, objective science and reliable enough to prove what it purports 5 to prove are inapplicable to expert testimony that is based on the expert’s 6 specialized knowledge.” Id. (internal quotation marks and citation omitted). It is 7 clear from the record that Detective Porter’s expert testimony was based on his 8 knowledge and experience, not on any scientific expertise. 9 {29} “[R]ather than testing an expert’s scientific methodology as required under 10 Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)] and [State v. 11 Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192], the [district] court must 12 evaluate a non-scientific expert’s personal knowledge and experience to determine 13 whether the expert’s conclusions on a given subject may be trusted.” Torrez, 2009- 14 NMSC-029, ¶ 21. The district court uses an expert’s skills, experience, training, or 15 education “to test the validity of the expert’s conclusions” and determine whether 16 the conclusions “prove what they purport to prove.” Id. ¶ 22; see also Ruffin, ___- 17 NMCA-___, ¶ 23 (concluding the district court should evaluate whether the expert 18 witness’s “conclusions are consistent with his specialized training and experience” 19 when testing the validity of his non-scientific expert testimony).

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1 {30} In addition to his experience, Detective Porter testified that in most cases 2 crack cocaine is sold by the rock, not by its weight. He explained that the weight of 3 a crack rock varies with the dealer; some sell rocks that weigh one gram while 4 others sell “.2[,] .4 at most for an individual rock.” He testified that in most cases 5 when they would purchase crack cocaine from a low-level dealer, the dealer would 6 “have just maybe a handful of rocks[.]” Furthermore, the low- to mid-level 7 traffickers they arrested were found with a range of three to twenty rocks, an 8 amount he said was consistent with trafficking. Detective Porter testified that based 9 on his training and conversations with informants, people typically use “maybe one 10 to two rocks a day[.]” However, the highest quantity of crack cocaine he had ever 11 heard someone smoke in a day was four rocks. In light of his knowledge and 12 experience, we cannot say Detective Porter’s conclusions were unreliable. See 13 State v. Rael-Gallegos, 2013-NMCA-092, ¶ 21, 308 P.3d 1016 (explaining that the 14 reviewing court must consider whether the expert witness’s “knowledge and 15 experience were sufficient to support a determination that her conclusions 16 regarding the distinction between personal use amounts versus trafficking amounts 17 of crack cocaine may be trusted”). 18 {31} Nonetheless, Defendant argues that Detective Porter’s expert testimony was 19 unreliable because of his investigative involvement in this case. Defendant relies 20 on United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003), in which the United

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1 States Court of Appeals for the Second Circuit noted such involvement confers 2 upon the expert “the aura of special reliability and trustworthiness surrounding 3 expert testimony[.]” Id. This Court, however, has recently rejected this concern. 4 See Ruffin, ___-NMCA-___, ¶ 31 (noting that our Supreme Court “rejected this 5 proposition” in Alberico, 1993-NMSC-047, ¶ 36, when it concluded that the 6 “premise that juries are awed by the aura of the infallibility of expert opinion 7 testimony and thus defer to it is flawed speculation” (internal quotation marks 8 omitted)). The Dukagjini court also noted “there is an increased danger that the 9 expert testimony will stray from applying reliable methodology and convey to the 10 jury the witness’s ‘sweeping conclusions’ about [the defendants’] activities[.]” 326 11 F.3d at 54. Here, again, this Court rejected the Dukagjini court’s proposition, 12 explaining “that it is the responsibility of the district court to remain vigilant and 13 ensure that the expert not stray from the scope of his/her expertise.” Ruffin, ___- 14 NMCA-___, ¶ 32. For these reasons, we conclude the district court did not err in 15 permitting Detective Porter to testify as an expert witness, and we proceed to 16 Defendant’s arguments regarding the sufficiency of the evidence. 17 C. Defendant’s Convictions Were Supported by Substantial Evidence 18 {32} Defendant challenges the sufficiency of the evidence supporting his 19 convictions for trafficking by possession with intent to distribute, as well as 20 tampering with evidence. “Jury instructions become the law of the case against

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1 which the sufficiency of the evidence is to be measured.” State v. Jackson, 2018- 2 NMCA-066, ¶ 22, 429 P.3d 674, cert. denied, 2018-NMCERT-___ (No. 3 S-1-SC-37267, Oct. 15, 2018) (internal quotation marks and citation omitted). “In 4 reviewing the sufficiency of the evidence in a criminal case, we must determine 5 whether substantial evidence, either direct or circumstantial, exists to support a 6 verdict of guilty beyond a reasonable doubt for every essential element of the 7 crime at issue.” Rael-Gallegos, 2013-NMCA-092, ¶ 8 (internal quotation marks 8 and citation omitted). “Resolving all conflicts, indulging all permissible inferences 9 to uphold the conviction, and disregarding all evidence and inferences to the 10 contrary, we view the evidence in the light most favorable to the verdict to ensure 11 that a rational jury could have found each element of the crime established beyond 12 a reasonable doubt.” Id. (alteration, internal quotation marks, and citation omitted). 13 “It is for the fact-finder to evaluate the weight of the evidence, to assess the 14 credibility of the various witnesses, and to resolve any conflicts in the evidence; 15 we will not substitute our judgment as to such matters.” Id. (alteration, internal 16 quotation marks, and citation omitted). 17 {33} With regard to Defendant’s trafficking conviction, the jury was instructed 18 that the State must prove beyond a reasonable doubt that Defendant (1) had 19 cocaine in his possession, (2) knew or believed it was cocaine, and (3) intended to 20 transfer it to another. Defendant argues the State did not present sufficient evidence

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1 of his intent to distribute. “Intent to distribute may be inferred when the amount of 2 controlled substance possessed is inconsistent with personal use.” State v. 3 Hubbard, 1992-NMCA-014, ¶ 9, 113 N.M. 538, 828 P.2d 971. “Intent may be 4 proved by inference from surrounding facts and circumstances, such as quantity 5 and manner of packaging of the controlled substance.” Id. 6 {34} The detectives testified that they first saw Defendant at his home, where they 7 witnessed a vehicle “pull up to” Defendant’s home. Defendant exited his home, 8 walked to the vehicle, met with the driver of the vehicle, and returned to his home. 9 After the vehicle left, Defendant entered a vehicle and drove to an Arby’s. 10 Detective Porter testified that when Defendant first pulled into the Arby’s parking 11 lot, a female approached Defendant’s vehicle, leaned into the driver-side window, 12 and reached into the vehicle, which “was consistent with people’s hands in the 13 vehicle, like there was an exchange[.]” After a “short time” passed, the female 14 walked towards the Arby’s with nothing visible in her hands. Defendant “circled” 15 through the parking lot and pulled into a parking spot, at which point the female 16 walked over to his car and “reached in to talk through [the] passenger window.” 17 Detective Porter described this activity as being “consistent with drug trafficking.” 18 {35} Furthermore, Detective Porter explained that an individual possessing a 19 range of three to twenty rocks of crack cocaine was consistent with trafficking. He 20 and Detective Meek recovered a bag containing thirteen rocks of crack cocaine on

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1 Defendant’s person. Given the quantity of crack cocaine found on Defendant’s 2 person, combined with the surrounding circumstances and Detective Porter’s 3 expert testimony, we hold that there was sufficient evidence from which the jury 4 could infer Defendant’s intent to distribute. See id. ¶ 15 (explaining that “[i]f the 5 amount of an illegal drug found in an accused’s possession is not by itself 6 sufficient to prove inconsistency with personal use, then the state must present 7 testimony that the amount of drugs in the accused’s possession is inconsistent with 8 personal use”). 9 {36} As to the tampering conviction, Defendant’s sole argument is that because 10 there was only sufficient evidence of possession, rather than trafficking, he should 11 have been convicted of fourth-degree tampering, not a third-degree felony. See 12 NMSA 1978, § 30-22-5(B)(2) (2003) (providing that “if the highest crime for 13 which tampering with evidence is committed is a third degree felony or a fourth 14 degree felony, the person committing tampering with evidence is guilty of a fourth 15 degree felony” (emphasis added)). However, as we have concluded above, there 16 was sufficient evidence to support Defendant’s conviction for trafficking by 17 possession with intent to distribute, a first-degree felony “for the second and 18 subsequent offenses[.]” NMSA 1978, § 30-31-20(B)(2) (2006). Having been 19 convicted of a first-degree felony due to a prior felony “[t]rafficking or 20 [d]istribution” conviction, Defendant’s tampering with evidence conviction is

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1 therefore supported by sufficient evidence. See § 30-22-5(B)(1) (providing that “if 2 the highest crime for which tampering with evidence is committed is a . . . first 3 degree felony . . ., the person committing tampering with evidence is guilty of a 4 third degree felony”).

5 D. The District Court Did Not Err in Denying Defendant’s Motion to 6 Dismiss on Grounds That the State Commented on His Right to Remain 7 Silent

8 {37} Defendant contends the district court erred in denying its motion to dismiss 9 after the State commented on Defendant’s right to remain silent. In both his 10 opening statement and closing argument, defense counsel repeatedly stated that 11 Defendant was addicted to crack cocaine. Defendant did not testify, and no 12 evidence was presented to support defense counsel’s assertion that Defendant was 13 an addict. During the State’s rebuttal argument, it argued, “you have heard no 14 evidence that [Defendant] is a crack addict, none. That never came out of 15 . . . anybody’s mouth on the stand.” Defendant objected and moved for dismissal, 16 arguing the State implied “the only one that could have said that he was an addict 17 was the person who decided to not testify, based on his Fifth Amendment [r]ight.” 18 The district court denied Defendant’s motion. 19 {38} “The privilege against self-incrimination prohibits the prosecutor from 20 commenting on a defendant’s failure to testify at trial.” State v. Smith, 2001- 21 NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254 (internal quotation marks and

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1 citation omitted). “Where the error is preserved, we review a district court’s denial 2 of a motion for mistrial on the basis of remarks made in closing argument for an 3 abuse of discretion.” State v. Ramos-Arenas, 2012-NMCA-117, ¶ 16, 290 P.3d 733 4 (alterations, internal quotation marks, and citations omitted). “An abuse of 5 discretion occurs where the district court acts in an obviously erroneous, arbitrary, 6 or unwarranted manner.” State v. Sena, 2018-NMCA-037, ¶ 7, 419 P.3d 1240, cert. 7 granted, 2018-NMCERT-___ (No. S-1-SC-36932, consolidated with No. S-1-SC- 8 36933, May 25, 2018) (internal quotation marks and citation omitted). 9 {39} Although Defendant stated in his brief in chief that he moved for a mistrial, 10 the State correctly points out that Defendant moved to dismiss. In so doing, the 11 State appears to argue that Defendant’s request for dismissal rather than a mistrial 12 did not sufficiently preserve the issue. We note, however, that in ruling on 13 Defendant’s objection, the district court stated, “I will say that I think this is close, 14 but not far enough for a mistrial.” (Emphasis added.) Moreover, the State asserted 15 it had not commented on Defendant’s failure to testify. In light of the district 16 court’s ruling and the State’s response, we assume for purposes of this appeal that 17 Defendant’s objection preserved the issue. See State v. Griffin, 2002-NMCA-051, 18 ¶ 5, 132 N.M. 195, 46 P.3d 102 (“The purpose of the preservation requirement is 19 twofold: (1) that the [district] court be alerted to the error so that it is given an 20 opportunity to correct the mistake, and (2) that the opposing party be given a fair

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1 opportunity to meet the objection.” (internal quotation marks and citation 2 omitted)). 3 {40} When reviewing challenges to closing arguments, three factors “carry great 4 influence in our deliberations: (1) whether the statement invades some distinct 5 constitutional protection; (2) whether the statement is isolated and brief, or 6 repeated and pervasive; and (3) whether the statement is invited by the defense.” 7 State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348. “In applying 8 these factors, the statements must be evaluated objectively in the context of the 9 prosecutor’s broader argument and the trial as a whole.” Id. Taken in context, the 10 State’s comment was a very brief part of its rebuttal argument. Moreover, the 11 comment was made in direct response to defense counsel’s repeated assertions that 12 were unsupported by the evidence. Accordingly, Defendant failed to show there 13 was a violation of his Fifth Amendment rights. See Smith, 2001-NMSC-004, 14 ¶¶ 37, 40 (holding that because it was a brief part of the state’s closing argument 15 and was based on evidence presented at trial, there was no violation of the non- 16 testifying defendant’s Fifth Amendment rights when the prosecutor stated in her 17 rebuttal argument that there was no testimony to support defense counsel’s factual 18 assertion made in closing argument). The district court did not abuse its discretion 19 in denying Defendant’s motion.

20 E. The District Court Did Not Err When it Declined to Give Defendant’s 21 Jury Instructions

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1 {41} Finally, Defendant argues the district court erred in refusing to give jury 2 instructions on self-defense and unlawfulness related to the battery charges. “The 3 propriety of jury instructions is a mixed question of law and fact.” State v. 4 Contreras, 2007-NMCA-119, ¶ 8, 142 N.M. 518, 167 P.3d 966 (internal quotation 5 marks and citation omitted). “When considering a defendant’s requested 6 instructions, we view the evidence in the light most favorable to the giving of the 7 requested instructions.” Id. (alteration, internal quotation marks, and citation 8 omitted). “Viewing the facts in that manner, we review the issue de novo.” Id. 9 “When evidence at trial supports the giving of an instruction on a defendant’s 10 theory of the case, failure to so instruct is reversible error.” Id. (internal quotation 11 marks and citation omitted). 12 {42} “[A] self-defense instruction is required whenever or if a defendant presents 13 evidence sufficient to allow reasonable minds to differ as to all elements of the 14 defense.” State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 15 (alteration, internal quotation marks, and citation omitted). “[A] person has only a 16 qualified right to assert self-defense against a police officer, because police officers 17 have a duty to make arrests and a right to use reasonable force when necessary.” 18 Id. “[A]lthough one does have a right to defend oneself from a police officer, it is 19 clear that this right is limited.” Id. (alterations, internal quotation marks, and

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1 citation omitted). “This limitation entitles one to assert self-defense only when the 2 officer is using excessive force.” Id. ¶ 16. 3 {43} Defendant argued in the district court that the jury could have rejected the 4 detectives’ testimonies:

5 They inflicted pain upon my client and, therefore, my client, in trying 6 to get away, he kicked or struck one of the police officers. And I 7 believe that is enough for self-defense. Because the inference is that 8 there could have been excessive force on the part of the officers, 9 whoever, Porter or Meek, whoever it is. And at that point, my client 10 decided to defend himself, not knowing or perhaps knowing, that they 11 were police officers, but that’s for the jury to decide.

12 (Emphasis added.) Defendant’s argument is predicated on the notion that the jury 13 could have found that he kicked Detective Porter after either he or Detective Meek 14 made physical contact with Defendant. However, the record demonstrates that 15 Defendant kicked Detective Porter before either Detective Porter or Detective 16 Meek used any degree of force on Defendant. There being no evidence to support 17 Defendant’s contention that he kicked to defend himself after the detectives had 18 already used force on Defendant, the district court did not err in rejecting his 19 proposed jury instructions. See State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 20 184, 185 P.3d 355 (“A defendant is entitled to an instruction on his or her theory of 21 the case if evidence has been presented that is sufficient to allow reasonable minds 22 to differ as to all elements of the offense.” (internal quotation marks and citation 23 omitted)); State v. Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162

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1 (explaining that “there must be evidence to support” an instruction on self-defense 2 to warrant giving the instruction). 3 II. CONCLUSION 4 {44} We conclude Defendant’s convictions for battery upon a peace officer and 5 resisting, evading, or obstructing an officer violate the prohibition against double 6 jeopardy. We therefore remand to the district court to vacate Defendant’s 7 conviction for resisting, evading, or obstructing an officer, and to resentence 8 Defendant accordingly. We further conclude that Defendant’s remaining claims of 9 error are without merit and affirm the district court on all other grounds. 10 {45} IT IS SO ORDERED.

11 __________________________________ 12 JULIE J. VARGAS, Judge

13 WE CONCUR:

14 _________________________________ 15 LINDA M. VANZI, Judge

16 _________________________________ 17 JENNIFER L. ATTREP, Judge