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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,678
5 ADAM GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 8 Jeff F. McElroy, District Judge
9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Allison H. Jaramillo, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge.
19 {1} Defendant, Adam Gonzales, appeals from his convictions for possession of a
20 controlled substance with intent to distribute, contrary to NMSA 1978, Section 30-31- 1 22(A)(2) (2011), and possession of drug paraphernalia, contrary to NMSA 1978,
2 Section 30-31-25.1(A) (2001). Defendant raises seven issues on appeal concerning:
3 (1) the admission of evidence obtained during a warrantless search of his cell phone,
4 (2) ineffective assistance of counsel, (3) the admission of propensity evidence, (4) the
5 qualification of Lieutenant Edwardo Martinez as an expert witness and the admission
6 of certain expert witness testimony, (5) the sufficiency of the evidence to support his
7 conviction for possession of a controlled substance with intent to distribute, (6) double
8 jeopardy, and (7) the district court judge’s failure to recuse himself.
9 I. BACKGROUND
10 {2} On March 1, 2013, Defendant’s Adult Probation and Parole Officer (APO)
11 Valerie Valdez, along with APO Carol Adams went to Defendant’s residence to arrest
12 him for a probation violation. New Mexico State Police Officers, Victor Flores and
13 Anthony Luna, accompanied APO Valdez and APO Adams to ensure their safety.
14 Defendant had approximately $800 in cash in his wallet. APO Valdez believed that
15 Defendant’s possession of the cash was suspicious since Defendant had reported no
16 employment or source of income for at least eighteen months. Under the
17 circumstances, APO Valdez believed that a search of Defendant’s home would
18 produce evidence of further probation violations.
2 1 {3} APO Valdez and APO Adams searched Defendant’s residence. Nineteen strips
2 of the drug Suboxone were discovered in Defendant’s bedroom. Some of the strips
3 were packaged and/or concealed in latex gloves. The probation officers also found
4 rolling papers, small plastic baggies, a box of latex gloves, six cell phones,
5 approximately $500 in cash, two touch pads, an iPod, police scanners, and an EBT
6 card that did not belong to Defendant. APO Valdez seized this evidence, along with
7 the Suboxone strips.
8 {4} At the police station, APO Valdez turned the evidence over to the New Mexico
9 State Police to investigate Defendant’s possible involvement in drug trafficking. After
10 looking through the seized phones, officers discovered and photographed text
11 messages that they believed showed an attempt by Defendant to obtain and/or provide
12 Suboxone. Defendant was charged with possession of a controlled substance with
13 intent to distribute and possession of drug paraphernalia. The case proceeded to trial.
14 {5} On the morning of trial, Defendant filed a motion in limine to exclude the text
15 messages retrieved from his cell phone on both evidentiary and constitutional grounds.
16 He claimed the text messages (1) constituted improper character evidence, (2)
17 constituted hearsay, (3) were irrelevant and prejudicial, and (4) had been obtained
18 without legal justification. The district court had to get clarification from Defendant’s
19 counsel that counsel was arguing that the evidence should have been suppressed as the
3 1 fruit of an illegal search. The district court determined that evidentiary objections
2 could be made as the evidence was offered at trial. The district court also explained
3 that Defendant should have moved for suppression prior to trial and that as a result of
4 Defendant’s failure to timely move for suppression, the court did not have time to
5 schedule an evidentiary hearing on the matter. The district court denied Defendant’s
6 motion based on its untimeliness and based on the absence of evidence before the
7 court concerning the lawfulness of the cell phone search. The district court advised
8 Defendant’s counsel that the question could be re-opened if evidence at trial presented
9 an issue as to the lawfulness of the search.
10 {6} At trial, Defendant’s counsel objected to the admission of text message
11 evidence. The objection was based on the pre-trial motion in limine. Counsel did not
12 further specify the grounds for his objection. Over Defense counsel’s objections,
13 Officer Luna was permitted to read two of the text messages retrieved from one of the
14 seized phones. The text messages read: “Got subs for u” and “I am gonna have
15 something for you by tonight it morning least half it’s that the thing hasn’t went
16 threw.” Defendant was convicted of possession of a controlled substance with intent
17 to distribute and possession of drug paraphernalia. This appeal followed.
18 II. DISCUSSION
19 A. Suppression of Evidence
4 1 {7} Defendant contends that the district court erred in denying his motion to
2 suppress the text messages retrieved from his cell phones. On appeal, Defendant
3 argues that the district court erred in finding that he failed to show a factual basis to
4 support suppression of the messages as the fruit of an illegal search. “Appellate review
5 of a motion to suppress presents a mixed question of law and fact. We review factual
6 determinations for substantial evidence and legal determinations de novo.” State v.
7 Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks and
8 citation omitted). We review the facts “in a manner most favorable to the prevailing
9 party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal
10 quotation marks and citation omitted).
11 {8} Under the Fourth Amendment, the reasonableness of a search depends “on a
12 balance between the public interest and the individual’s right to personal security free
13 from arbitrary interference by law officers.” State v. Williams, 2011-NMSC-026, ¶ 10,
14 149 N.M. 729, 255 P.3d 307 (internal quotation marks and citation omitted). The
15 Fourth Amendment expresses a clear preference in favor of obtaining search warrants
16 prior to conducting a search. See State v. Williamson, 2009-NMSC-039, ¶ 14, 146
17 N.M. 488, 212 P.3d 376. “A probationer’s rights in this regard are more limited than
18 those of other citizens, and our courts have held that probation officers may
19 constitutionally search a probationer’s home without a warrant when they possess
5 1 reasonable cause to believe a probation violation has occurred.” State v. Bolin, 2010-
2 NMCA-066, ¶ 13, 148 N.M. 489, 238 P.3d 363 (citation omitted); State v. Brusuelas,
3 2009-NMCA-111, ¶ 9, 147 N.M. 233, 219 P.3d 1 (“Warrantless probation searches
4 and seizures must comply with the reasonableness components of the Fourth
5 Amendment[.]” (internal quotation marks and citations omitted)).
6 {9} “A search and seizure conducted without a warrant is unreasonable unless it is
7 shown to fall within one of the exceptions to the warrant requirement.” State v. Diaz,
8 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4. Consent to search, including
9 consent given as a condition of probation, had been acknowledged as an exception to
10 the warrant requirement. See State v. Baca, 2004-NMCA-049, ¶ 35, 135 N.M. 490,
11 90 P.3d 509 (“[A] warrantless search probation condition is permissible if reasonably
12 related to the probationer’s rehabilitation.”). “A warrantless search not reasonably
13 related to the probationer’s rehabilitation is not ‘reasonable’.” State v. Ponce, 2004-
14 NMCA-137, ¶ 43, 136 N.M. 614, 103 P.3d 54 (Vigil, J., dissenting). “Thus,
15 warrantless [probation] searches are restricted to those instances necessary to advance
16 the purposes of probation.” Id.
17 {10} In his motion in limine, Defendant alleged that there was no “legal justification
18 for the search” of his cell phones. Defendant did not provide a factual basis for this
19 allegation. Nor did he did argue for the suppression of the text messages as fruit of an
6 1 illegal search. On the morning of Defendant’s trial, defense counsel continued to
2 argue for the exclusion of the text messages under the rules of evidence. Counsel also
3 mentioned that the cell phone search was conducted without a search warrant. The
4 district court judge asked counsel if he was intending to make a constitutional
5 argument for suppression. Counsel affirmed that he was in fact raising the
6 constitutional issue, but did not set forth grounds for his constitutional objection.
7 Counsel failed to articulate why the probation search was unreasonable, and was
8 unable when asked to provide the court with any legal authority to support his
9 suppression argument.
10 {11} The district court denied Defendant’s motion to suppress the text messages
11 because Defendant failed to articulate a factual or legal basis to support suppression
12 and because the timing of the motion left the court no time to conduct an evidentiary
13 hearing on the issue. Defendant’s allegation of illegality was insufficiently particular
14 to alert the district court to the factual bases for suppression, which would shift the
15 burden to the State to show justification for the search. See State v. Goss, 1991-
16 NMCA-003, ¶ 13, 111 N.M. 530, 807 P.2d 228 (stating that “motions to suppress
17 must set out with particularity the grounds relied on for the relief sought”); see also
18 Ponce, 2004-NMCA-137, ¶ 7 (“[The d]efendants have the burden to raise an issue as
19 to their illegal search and seizure claims. Once they have done so, the burden shifts
7 1 to the state to justify the warrantless search or seizure.” (alterations, internal quotation
2 marks, and citation omitted)). We conclude that the district court did not err in
3 denying Defendant’s suppression motion.
4 {12} Alternatively, Defendant asserts that he received ineffective assistance of
5 counsel because his attorney did not re-raise the suppression issue during his trial.
6 “We review claims of ineffective assistance of counsel de novo.” State v. Dylan J.,
7 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.
8 {13} “The Sixth Amendment to the United States Constitution, applicable to the
9 states through the Fourteenth Amendment, guarantees . . . the right to the effective
10 assistance of counsel.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179,
11 21 P.3d 1032 (internal quotation marks and citation omitted). “When an ineffective
12 assistance claim is first raised on direct appeal, we evaluate the facts that are part of
13 the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “A
14 prima facie case of ineffective assistance is made by showing that defense counsel’s
15 performance fell below the standard of a reasonably competent attorney and, due to
16 the deficient performance, the defense was prejudiced.” Patterson, 2001-NMSC-013,
17 ¶ 17 (internal quotation marks and citations omitted).
18 {14} Where an ineffective assistance of counsel claim “is premised on counsel’s
19 failure to move to suppress evidence, [the d]efendant must establish that the facts
8 1 support the motion to suppress and that a reasonably competent attorney could not
2 have decided that such a motion was unwarranted.” State v. Mosley, 2014-NMCA-
3 094, ¶ 20, 335 P.3d 244 (internal quotation marks and citation omitted). Here,
4 Defendant argues that his counsel was ineffective in failing to re-raise suppression of
5 the text messages during trial. Defendant suggests that, had his counsel obtained a
6 ruling on the suppression of the text messages “once additional facts were developed
7 through witness testimony,” suppression would likely have been granted. However,
8 Defendant does not disclose which facts were developed at trial that would have
9 supported a renewed suppression motion, or through which witness’s testimony those
10 facts were developed. In fact, Defendant provides no citations to the record in support
11 of his ineffective assistance of counsel claim.
12 {15} We conclude that Defendant has failed to make a prima facie case of ineffective
13 assistance of counsel. See Rule 12-213(A)-(C) NMRA (requiring counsel, when
14 challenging a criminal conviction, to properly present this Court with the issues,
15 arguments, and proper authority). Mere reference in a conclusory statement will not
16 suffice and was in violation of our rules of appellate procedure. See id.; State v.
17 Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (“We remind counsel
18 that we are not required to do their research, and that this Court will not review issues
19 raised in appellate briefs that are unsupported by cited authority.” (citation omitted));
9 1 Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (“It is not our
2 practice to rely on assertions of counsel unaccompanied by support in the record. The
3 mere assertions and arguments of counsel are not evidence.” (internal quotation marks
4 and citation omitted)).
5 {16} We note that “[i]f facts beyond those in the record on appeal could establish a
6 legitimate claim of ineffective assistance of counsel, [the d]efendant may assert it in
7 a habeas corpus proceeding where an adequate factual record can be developed for a
8 court to make a reasoned determination of the issues.” State v. Crocco, 2014-NMSC-
9 016, ¶ 24, 327 P.3d 1068.
10 B. Admissibility of Evidence
11 {17} Defendant argues that the text messages retrieved from his cell phone were
12 admitted as improper character evidence. In general, we review a district court’s
13 evidentiary rulings for abuse of discretion. See State v. Guerra, 2012-NMSC-014,
14 ¶ 36, 278 P.3d 1031. “An abuse of discretion arises when the evidentiary ruling is
15 clearly contrary to logic and the facts and circumstances of the case.” State v. Downey,
16 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and
17 citation omitted).
18 {18} Defendant claims that the text messages show, at most, that he was looking to
19 purchase Suboxone, not sell it. According to Defendant, evidence suggesting that he
10 1 tried to purchase Suboxone went to his personal drug use rather than an intent to
2 distribute Suboxone, therefore, the text messages were admitted as improper character
3 evidence. See Rule 11-404(B)(1) NMRA (“Evidence of a crime, wrong, or other act
4 is not admissible to prove a person’s character in order to show that on a particular
5 occasion the person acted in accordance with the character.”). As such, Defendant
6 contends that the probative value of the text messages was substantially outweighed
7 by the risk of unfair prejudice. We disagree.
8 {19} Evidence tending to show that Defendant attempted to obtain Suboxone was
9 highly relevant to the elements of the charged crime. See UJI 14-3104 NMRA (“[T]o
10 find the defendant guilty of possession with intent to distribute . . . the state must
11 prove to [the jury’s] satisfaction beyond a reasonable doubt each of the following
12 elements of the crime: [t]he defendant had [a controlled substance] in his possession;
13 [t]he defendant knew it was [a controlled substance] or believed it to be [a controlled
14 substance] or believed it to be some drug or other substance the possession of which
15 is regulated or prohibited by law; [and t]he defendant intended to transfer it to
16 another[.]”); Rule 11-401 NMRA (“Evidence is relevant if . . . it has any tendency to
17 make a fact more or less probable than it would be without the evidence, and . . . the
18 fact is of consequence in determining the action.”). And “[w]e may infer from the
19 evidence that [the defendant] intended to distribute the drug after purchasing it.” State
11 1 v. Bankert, 1994-NMSC-052, ¶ 21, 117 N.M. 614, 875 P.2d 370. Because the text
2 messages are relevant to the crimes charged, they are presumptively admissible. See
3 Rule 11-402 NMRA (“Relevant evidence is admissible unless any of the following
4 provides otherwise: the United States or New Mexico constitution, a statute, these
5 rules, or other rules prescribed by the Court.”).
6 {20} The messages, which were highly probative, could only be excluded if they
7 were deemed so extraordinarily inflammatory to the jury that the evidence
8 substantially outweighed its probative value. See Rule 11-403 NMRA. “ ‘Unfair
9 prejudice’ within its context means an undue tendency to suggest decision on an
10 improper basis, commonly, though not necessarily, an emotional one.” State v.
11 Stanley, 2001-NMSC-037, ¶ 17, 131 N.M. 368, 37 P.3d 85 (internal quotation marks
12 and citation omitted). “Evidence should be excluded as unfairly prejudicial in the
13 sense of being too emotional if it is best characterized as sensational or shocking,
14 provoking anger, inflaming passions, or arousing overwhelmingly sympathetic
15 reactions, or provoking hostility or revulsion or punitive impulses, or appealing
16 entirely to emotion against reason.” Id. (internal quotation marks and citation
17 omitted). We conclude that the text messages from which the jury may have inferred
18 that Defendant was trying to obtain Suboxone are not the type of evidence that had an
19 unusual propensity to prejudice, confuse, inflame or mislead the jury, and the district
12 1 court did not abuse its discretion in admitting them into evidence. See State v. Flores,
2 2010-NMSC-002, ¶ 27, 147 N.M. 542, 226 P.3d 641 (“[A]ny doubt whether the
3 evidence is relevant should be resolved in favor of admissibility.” (internal quotation
4 marks and citation omitted)); see also Guerra, 2012-NMSC-014, ¶ 36 (“[R]ulings on
5 matters of . . . relevance under Rule 11-402 and the counterbalances to relevant
6 evidence under Rule 11-403 are left to the broad discretion of the district court.”).
7 C. Sufficiency of the Evidence—Intent to Distribute
8 {21} Defendant claims that the State presented insufficient evidence of the
9 possession of a controlled substance with the intent to distribute charge. “In reviewing
10 the sufficiency of the evidence, we must view the evidence in the light most favorable
11 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in
12 the evidence in favor of the verdict.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d
13 409 (internal quotation marks and citation omitted). “In that light, the Court
14 determines whether any rational trier of fact could have found the essential elements
15 of the crime beyond a reasonable doubt.” Id. (internal quotation marks and citation
16 omitted).
17 {22} Concerning the charge of possession of a controlled substance with the intent
18 to distribute, the jury was instructed:
19 For you to find [D]efendant guilty of possession with intent to 20 distribute Suboxone as charged in Count 1, the [S]tate must prove to
13 1 your satisfaction beyond a reasonable doubt each of the following 2 elements of the crime:
3 1. [D]efendant had Suboxone in his possession;
4 2. [D]efendant knew it was Suboxone or believed it to be Suboxone 5 or believed it to be some drug or other substance the possession of 6 which is regulated or prohibited by law;
7 3. [D]efendant intended to transfer it to another;
8 4. This happened in New Mexico on or about the 1st day of March, 9 2013.
10 See UJI 14-3104. Defendant claims that there was insufficient evidence of the third
11 element that he intended to transfer Suboxone to another. Specifically, Defendant
12 argues that the amount of Suboxone found in his residence was consistent only with
13 personal use and that the rest of the State’s evidence was not sufficient to show that
14 he intended to distribute the drug.
15 {23} “To prove possession with intent to distribute, specific intent must be shown.”
16 State v. Bejar, 1984-NMCA-031, ¶ 7, 101 N.M. 190, 679 P.2d 1288. “The fact of
17 intent to distribute can be shown through factual and circumstantial evidence.” Id. In
18 this case, the State presented evidence that nineteen strips of Suboxone were
19 discovered in Defendant’s bedroom. Some of the strips were wrapped in cellophane,
20 stuffed along with loose tobacco into the cut off fingers of latex gloves, which were
21 themselves wrapped several times in latex gloves. APO Adams and APO Valdez also
14 1 found a box of latex gloves in Defendant’s bathroom and found rolling papers and
2 small plastic baggies in other parts of the house. Other evidence discovered during the
3 search of Defendant and his residence and was presented at trial, included multiple
4 cell phones, approximately $1200 in cash, police scanners, and an EBT card that did
5 not belong to Defendant.
6 {24} Lieutenant Martinez testified that evidence of packaging, plastic baggies,
7 money, EBT cards, police scanners and multiple cell phones, when found together or
8 in combination with illegal drugs, can indicate drug trafficking activity. Lieutenant
9 Martinez explained that EBT cards are sometimes accepted by drug traffickers as
10 currency. He also testified that drug traffickers may use police scanners to listen in on
11 law enforcement, and may use multiple cell phones to keep their elicit activities
12 separate from their personal lives, or to make it more difficult for law enforcement to
13 track their activities.
14 {25} We conclude that, because knowledge and intent can be inferred, there was
15 sufficient evidence for the jury to conclude that Defendant possessed the requisite
16 intent to distribute. State v. Motes, 1994-NMSC-115, ¶ 11, 118 N.M. 727, 885 P.2d
17 648 (noting that because intent was subjective, it was rarely proved by direct evidence
18 and was almost always inferred from other facts in the case); State v. Montoya, 1966-
19 NMSC-224, ¶ 10, 77 N.M. 129, 419 P.2d 970 (recognizing that because knowledge
15 1 “is personal in its nature and may not be susceptible of proof by direct evidence[,]”
2 it may “be inferred from occurrences and circumstances”); see Bejar, 1984-NMCA-
3 031, ¶ 12 (recognizing that an amount of illegal drugs consistent with personal use
4 combined with evidence of packaging materials and paraphernalia can be sufficient
5 to support a distribution charge).
6 {26} To the extent that Defendant argues that evidence presented at trial, including
7 his own testimony and the testimony of others, could have supported a different result,
8 we disagree that any inconsistency in the evidence warrants reversal. State v. Ortiz-
9 Burciaga, 1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96 (“It is the exclusive
10 province of the jury to resolve factual inconsistencies in [the evidence].” (internal
11 quotation marks and citation omitted)). Further, the question in this case is “not
12 whether substantial evidence would have supported an opposite result but whether
13 such evidence supports the result reached.” State v. James, 1989-NMCA-089, ¶ 11,
14 109 N.M. 278, 784 P.2d 1021.
15 D. Expert Witness Testimony
16 {27} At trial, Lieutenant Martinez was qualified as an expert witness in narcotics
17 investigations. Over Defendant’s objections, Lieutenant Martinez was permitted to
18 testify about the content of recorded telephone conversations between Defendant and
19 others while Defendant was incarcerated prior to trial. Defendant argues on appeal that
16 1 the district court erred in qualifying and admitting Lieutenant Martinez as an expert
2 witness. Defendant also argues that the district court erred in allowing Lieutenant
3 Martinez to summarize the content of the recorded telephone conversations as they
4 were admitted into evidence because the jury could decide for themselves what the
5 conversations meant.1 The State argues that Defendant failed to object to the
6 admission of Lieutenant Martinez as an expert witness and that Lieutenant Martinez’s
7 general expertise in narcotics investigations and factual knowledge in this case
8 allowed him to summarize the content of the telephone conversations and interpret the
9 substance of the telephone conversations for the jury.
10 {28} We review the admission of expert testimony for abuse of discretion. State v.
11 Torrez, 2009-NMSC-029, ¶ 9, 146 N.M. 331, 210 P.3d 228. “An abuse of discretion
12 occurs when the ruling is clearly against the logic and effect of the facts and
13 circumstances of the case. We cannot say the [district] court abused its discretion by
14 its ruling unless we can characterize it as clearly untenable or not justified by reason.”
1 15 Both Defendant and the State discuss Lieutenant Martinez’s testimony about 16 the content and interpretation of text messages located on one of Defendant’s cellular 17 phones in their brief without citation to the record. Our review of Lieutenant 18 Martinez’s testimony does not reveal testimony on this topic. As such, Defendant’s 19 related arguments are moot. See Rule 12-213(A)(3), (B) (directing that a summary of 20 the facts relevant to the issues on review shall contain citations to the record proper, 21 transcript of proceedings, or exhibits supporting each factual representation); Headley 22 v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 23 (declining to review undeveloped arguments with no citations to the record).
17 1 State v. Layne, 2008-NMCA-103, ¶ 6, 144 N.M. 574, 189 P.3d 707 (internal quotation
2 marks and citation omitted).
3 {29} Rule 11-702 NMRA governs the admission of expert testimony and sets out
4 three requirements: “(1) that the expert be qualified; (2) that the testimony be of
5 assistance to the trier of fact; and (3) that the expert’s testimony be about scientific,
6 technical, or other specialized knowledge with a reliable basis.” Loper v. JMAR, 2013-
7 NMCA-098, ¶ 19, 311 P.3d 1184 (internal quotation marks and citation omitted). The
8 proponent of the testimony bears the burden of satisfying these requirements. State v.
9 Morales, 2002-NMCA-052, ¶¶ 21, 23, 132 N.M.146, 45 P.3d 406, overruled on other
10 grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.
11 {30} Additionally, “[i]mproperly admitted evidence is not grounds for a new trial
12 unless the error is determined to be harmful.” Tollardo, 2012-NMSC-008, ¶ 25.
13 “[H]armless error review necessarily requires a case-by-case analysis” of whether a
14 guilty verdict is attributable to a particular evidentiary error. Id. ¶ 44. A party asserting
15 an evidentiary error must demonstrate to a “reasonable probability [that] the error
16 affected the verdict.” Id. ¶ 36 (emphasis, internal quotation marks, and citation
17 omitted). In assessing the probable effect of an evidentiary error, we “evaluate all of
18 the circumstances surrounding the error[,]” including “the importance of the
19 erroneously admitted evidence in the [state’s] case, as well as whether the error was
18 1 cumulative or instead introduced new facts.” Id. ¶ 43 (alterations, internal quotation
2 marks, and citation omitted).
3 {31} With respect to Lieutenant Martinez’s qualifications as an expert witness,
4 Lieutenant Martinez testified that he completed basic law enforcement training at the
5 New Mexico Law Enforcement Academy in 1998 and then completed training at the
6 New Mexico State Police Academy in 2002. He had since worked in various
7 capacities in law enforcement, including as a uniformed officer and in the areas of
8 criminal, narcotics, and undercover investigation. He had over three hundred hours of
9 advance narcotics investigation training and had been involved in over three hundred
10 narcotics investigations. After voir dire, Defendant did not object to Lieutenant
11 Martinez’s qualifications as an expert witness. Instead, he objected to Lieutenant
12 Martinez’s credibility as an expert witness given discrepancies in Lieutenant
13 Martinez’s resume. However, the weight and credibility of Lieutenant Martinez’s
14 testimony was for the jury to determine, not the district court. See State v. Lucero,
15 2015-NMCA-040, ¶ 18, 346 P.3d 1175; see also State v. McDonald, 1998-NMSC-
16 034, ¶ 21, 126 N.M. 44, 966 P.2d 752 (noting that any perceived deficiencies are
17 “relevant to the weight accorded by the jury to the testimony and not to the
18 testimony’s admissibility” (alteration, internal quotation marks, and citation omitted)).
19 1 Thus, the district court did not abuse its discretion in qualifying Lieutenant Martinez
2 as an expert in narcotics investigation.
3 {32} The portions of Lieutenant Martinez’s testimony that related to Defendant’s
4 telephone conversations covered five subject areas: (1) Defendant’s desire to
5 terminate his cellular phone service; (2) Defendant’s desire to have a jacket retrieved
6 from his house; (3) Defendant’s desire to have another person admit to owning the
7 Suboxone; (4) the identity of persons with whom Defendant was speaking; and (5) the
8 identity of a person referred to by a nickname during Defendant’s conversations. None
9 of these topics were particularly relevant to the charges against Defendant. Nor do the
10 telephone conversations appear to have been in code, or otherwise confusing with
11 respect to subject matter, such that expert analysis and interpretation would be
12 required. It was unclear to this Court how Lieutenant Martinez’s testimony would “be
13 of assistance to the trier of fact” given the charges against Defendant. Loper, 2013-
14 NMCA-098, ¶ 19.
15 {33} However, even if Lieutenant Martinez’s testimony was admitted in error, we
16 see no reasonable probability, and Defendant has not so asserted, that the error
17 affected the verdict. Substantial physical evidence, including nineteen strips of
18 Suboxone, rolling papers, small plastic baggies, a box of latex gloves, numerous cell
19 phones, approximately $1,300 in cash, a police scanner, and an EBT card that did not
20 1 belong to Defendant were recovered from Defendant’s person and residence. As
2 discussed immediately above, this physical evidence, when considered together with
3 inferences to be drawn from it, was sufficient to convict Defendant of the charges
4 against him. See Bejar, 1984-NMCA-031, ¶ 12 (recognizing that an amount of illegal
5 drugs consistent with personal use combined with evidence of packaging materials
6 and paraphernalia can be sufficient to support a distribution charge).
7 {34} Defendant fails to argue on appeal that a reasonable probability exists that the
8 admission of Lieutenant Martinez’s testimony affected the outcome of his trial. See
9 Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty
10 to review an argument that is not adequately developed.”). Because our independent
11 review of Lieutenant Martinez’s testimony does not indicate a reasonable probability
12 that the complained of testimony affected the verdict, we conclude that any error on
13 the part of the district court in admitting the testimony was harmless.
14 E. Double Jeopardy
15 {35} Defendant contends that his convictions for possession of a controlled
16 substance with intent to distribute and possession of drug paraphernalia violate the
17 prohibition against double jeopardy. “A double jeopardy challenge is a constitutional
18 question of law[,] which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10,
19 279 P.3d 747. “The Fifth Amendment of the United States Constitution[,] . . . made
21 1 applicable to New Mexico by the Fourteenth Amendment[,]” prohibits double
2 jeopardy and “functions in part to protect a criminal defendant against multiple
3 punishments for the same offense.” Id. (internal quotation marks and citations
4 omitted). Double jeopardy cases involving multiple punishments are classified as
5 either double-description cases, “where the same conduct results in multiple
6 convictions under different statutes[,]” or unit-of-prosecution cases, “where a
7 defendant challenges multiple convictions under the same statute.” Id. The present
8 case was a double-description case because Defendant challenges two convictions
9 under different statutes for what he claims was the same conduct.
10 {36} Double-description cases involve a two-part analysis. Swafford v. State, 1991-
11 NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we consider whether the conduct
12 underlying the offenses was unitary. See id.; see also Swick, 2012-NMSC-018, ¶ 11
13 (same); State v. Melendrez, 2014-NMCA-062, ¶ 7, 326 P.3d 1126. “[R]eviewing
14 whether conduct is unitary in the double jeopardy context, we indulge in all
15 presumptions in favor of the verdict.” State v. Herrera, 2015-NMCA-116, ¶ 12, 362
16 P.3d 167 (internal quotation marks and citation omitted). If the conduct was not
17 unitary, there was no double jeopardy violation. See State v. Contreras, 2007-NMCA-
18 045, ¶ 20, 141 N.M. 434, 156 P.3d 725. If the conduct was unitary, we must determine
22 1 “whether the [L]egislature intended to create separately punishable offenses.”
2 Swafford, 1991-NMSC-043, ¶ 25.
3 {37} Turning to the first prong of our analysis, whether the conduct was unitary,
4 “[t]he proper analytical framework is whether the facts presented at trial establish that
5 the jury reasonably could have inferred independent factual bases for the charged
6 offenses.” State v. Vance, 2009-NMCA-024, ¶ 13, 145 N.M. 706, 204 P.3d 31
7 (internal quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012,
8 ¶ 37, 324 P.3d 1230 (“In a double description case the primary inquiry is whether the
9 facts presented at trial establish that the jury reasonably could have inferred
10 independent factual bases for the charged offenses.” (internal quotation marks and
11 citation omitted)). “[F]irst[, w]e review the elements of the charged offenses[.]”
12 Vance, 2009-NMCA-024, ¶ 13. Then we consider whether the facts presented at trial
13 are sufficient to support the elements of both crimes. Id.
14 {38} Defendant was charged with possession of a controlled substance with intent
15 to distribute. In order to prove that charge, the State was required to show that
16 Defendant intentionally distributed or possessed with intent to distribute a controlled
17 substance. See § 30-31-22(A). Defendant was also charged with possession of drug
18 paraphernalia, which requires proof that Defendant used or had intent to use drug
19 paraphernalia “to plant, propagate, cultivate, grow, harvest, manufacture, compound,
23 1 convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal,
2 inject, ingest, inhale or otherwise introduce into the human body a controlled
3 substance.” Section 30-31-25.1(A). Defendant argues that the jury used the same
4 evidence—the box of latex gloves—to convict him of possession of drug
5 paraphernalia and of possession of a controlled substance with intent to distribute.
6 {39} At trial, both APO Adams and APO Valdez testified that nineteen strips of
7 Suboxone were discovered in Defendant’s bedroom. Several of the Suboxone strips
8 were wrapped in cellophane and stuffed with loose tobacco into the cut off fingers of
9 latex gloves, then wrapped several more times in latex gloves. APOs Adams and
10 Valdez also testified that a box of latex gloves was discovered in Defendant’s
11 bathroom, and rolling papers, as well as small plastic baggies, were found in other
12 parts of the house. The APOs also seized multiple cell phones, approximately $1200
13 in cash, police scanners, and an EBT card that did not belong to Defendant. Lieutenant
14 Martinez testified that evidence of packaging, plastic baggies, money, EBT cards,
15 police scanners, and multiple cell phones, when found together or in combination with
16 illegal drugs, can indicate drug trafficking activity.
17 {40} There were three types of evidence discovered in Defendant’s house: (1) the
18 drug evidence; (2) the items used for packing, repacking, or concealing the drugs; and
19 (3) circumstantial evidence going to intent to distribute. The Suboxone and the
24 1 circumstantial evidence going to intent, including the cash, the cell phones, the EBT
2 card, and the police scanners support the possession with intent to distribute charge
3 and are not items that constitute drug paraphernalia. The gloves, tobacco, and
4 cellophane used to package the Suboxone strips, as well as the box of latex gloves
5 found in Defendant’s bathroom, support the paraphernalia charge. Although the
6 packaging materials may bolster the circumstantial evidence going to Defendant’s
7 intent to distribute, they are not necessary to support that charge and are therefore
8 sufficiently distinct. See State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112
9 P.3d 1104.
10 {41} We conclude that Defendant’s conduct was not unitary and that “the jury
11 reasonably could have inferred independent factual bases for the charged offenses.”
12 Id. (internal quotation marks and citation omitted). Because Defendant’s conduct was
13 not unitary, we conclude under the first Swafford inquiry that double jeopardy
14 principles were not violated. See State v. Saiz, 2008-NMSC-048, ¶ 35, 144 N.M. 663,
15 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, ¶
16 36 n.1, 146 N.M. 357, 210 P.3d 783.
17 F. Judge Recusal
18 {42} Defendant contends that the judgment against him should be reversed because
19 the district court judge did not recuse himself despite his personal bias against
25 1 Defendant. Defendant acknowledges that this issue was not preserved. Nonetheless,
2 Defendant urges this Court to address the issue, claiming that it affects Defendant’s
3 fundamental right to a fair and impartial hearing. See Rule 12-216(B)(2) NMRA
4 (“This rule shall not preclude the appellate court from considering . . . questions
5 involving . . . fundamental error or fundamental rights of a party.”). The first step in
6 reviewing for fundamental error is to determine whether an error occurred. See
7 Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 N.M. 801, 161 P.3d 846. If error has
8 occurred, we then consider whether the error is fundamental. See id.
9 {43} Rule 21-211(A)(1) NMRA requires that a judge “disqualify himself or herself
10 in any proceeding in which the judge’s impartiality might reasonably be questioned,”
11 such as when “[t]he judge has a personal bias or prejudice concerning a party or a
12 party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”
13 Although “a district judge should voluntarily enter a recusal in any case where his or
14 her impartiality could reasonably be questioned, such recusal is within the sound
15 discretion of the trial judge.” State v. Hernandez, 1993-NMSC-007, ¶ 43, 115 N.M.
16 6, 846 P.2d 312 (citation omitted). “Voluntary recusal is reserved for compelling
17 constitutional, statutory, or ethical reasons because a judge has a duty to sit where not
18 disqualified which is equally as strong as the duty to not sit where disqualified.” Id.
19 (alteration, emphasis, internal quotation marks, and citation omitted).
26 1 {44} In the present case, Defendant argues that the district court was biased against
2 him because at the time Defendant was arrested, he was on probation for a DWI
3 involving great bodily harm and that the victim of Defendant’s DWI case was a
4 former Taos district attorney. However, nothing in the record supports an inference
5 that Defendant’s prior charges or the identity of the victim in his DWI case influenced
6 the district court’s impartiality. See Roybal v. Morris, 1983-NMCA-101, ¶ 7, 100
7 N.M. 305, 669 P.2d 1100 (“Suspicion of bias or prejudice is not enough to disqualify
8 a judge.”); see also State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-
9 NMCA-088, ¶ 76, 355 P.3d 814 (concluding in a termination of parental rights case
10 that “[t]he suggestion that the district court judge’s impartiality could be reasonably
11 questioned, based solely on the fact that he and one of [the c]hildren’s temporary
12 foster parents sat concurrently as judges for the same district, is insufficient to require
13 recusal.” (emphasis added)); State v. Trujillo, 2009-NMCA-128, ¶ 12, 147 N.M. 334,
14 222 P.3d 1040 (holding that the district court judge’s previous representation of the
15 victim in a juvenile delinquency proceeding, prior to the judge’s appointment to the
16 bench did not create an appearance of impropriety requiring recusal).
17 {45} Defendant also claims that the district court was biased because he addressed
18 Defendant at Defendant’s sentencing: “I participated when you were in drug court. I
19 was a drug court team member at the time and I was never sure [Defendant], whether
27 1 you were taking it seriously. I was never sure whether we were getting through. I think
2 sometimes we did and sometimes we didn’t.” We cannot say that this statement by the
3 district court demonstrates a personal bias against Defendant. See Hernandez, 1993-
4 NMSC-007, ¶ 44 (“In order to require recusal, bias must be of a personal nature
5 against the party seeking recusal.”); cf. In re Esperanza M., 1998-NMCA-039, ¶ 34,
6 124 N.M. 735, 955 P.2d 204 (holding that the judge’s comment that he was
7 disappointed by the parents’ insistence that the child testify during the child abuse and
8 neglect proceeding when they themselves chose not to, pursuant to their constitutional
9 right not to incriminate themselves, although improper, did not warrant reassignment
10 of the case to a different judge on remand); State v. Swafford, 1989-NMCA-069, ¶ 20,
11 109 N.M. 132, 782 P.2d 385 (stating that a comment by the judge, which “merely
12 refers, in a general way, to the judge’s feelings about violent crimes once a conviction
13 is obtained” does not suggest bias or prejudice in sentencing the defendant and
14 therefore was not reversible error).
15 {46} Defendant suggests that the district court judge’s bias can be inferred by the fact
16 that the sentence for possession of a controlled substance with the intent to distribute
17 and the sentence for Defendant’s previous crime were imposed consecutively.
18 Because the record supports the sentences imposed, we decline to infer personal bias
19 against Defendant on account of the consecutive sentences imposed. See State v.
28 1 Williams, 1986-NMCA-122, ¶ 19, 105 N.M. 214, 730 P.2d 1196 (declining to infer
2 actual bias or prejudice from the district court’s refusal to merge convictions and from
3 the imposition of consecutive sentences for each conviction, recognizing that
4 “allegations of judicial bias cannot be predicated upon unfavorable rulings, nor from
5 the imposition of maximum allowable prison sentences.” (citation omitted)).
6 III. CONCLUSION
7 {47} For the foregoing reasons, we affirm Defendant’s convictions for possession of
8 a controlled substance with intent to distribute and possession of drug paraphernalia.
9 {48} IT IS SO ORDERED.
10 11 M. MONICA ZAMORA, Judge
12 WE CONCUR:
13 14 JAMES J. WECHSLER, Judge
15 16 RODERICK T. KENNEDY, Judge