STATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID BROWN, Defendant-Appellant.
No. A-1-CA-41969
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
HENDERSON, Judge.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Fred Van Soelen, District Court Judge
Raul Torrez, Attorney General
Benjamin L. Lammons, Assistant Solicitor General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Maria A. Pomorski, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HENDERSON, Judge.
{1} Defendant David Brown appeals his conviction for trafficking methamphetamine by possession with intent to distribute, contrary to
{2} On January 25, 2023, three probation officers conducted a visit of Defendant‘s motel room in Clovis, New Mexico, where Defendant was staying with his girlfriend. The probation officers observed a crystalized substance and syringe in an open black box along with beer cans and a pipe on the nightstand, and contacted the Clovis Police Department. A sergeant then came to the motel to investigate.
{3} Upon arriving at the room, the sergeant located a black box, which contained a needle, baggies, loose methamphetamine, and a crystalized rock that later tested positive for methamphetamine on the nightstand. The sergeant also observed a digital scale on the nightstand and “some glass meth pipes and a large bong” on a nearby dresser. Defendant and his girlfriend then agreed to a search of the room. The sergeant searched the girlfriend‘s purse and found baggies with a substance that tested positive for black tar heroin, blue pills that tested positive for acetaminophen though testing could not rule out fentanyl, and Xanax pills. As a result, Defendant was charged with two counts of trafficking a controlled substance by possession with intent to distribute, contrary to
{4} At trial, the State began to ask one of the probation officers about four photographs she had taken while in the motel room. One of the photographs—the main photograph at issue and admitted as State‘s Exhibit 2—showed a black box containing methamphetamine, a syringe, and baggies on the nightstand, but inaccurately showed marked baggies of Xanax and fentanyl on the nightstand as well, which had been placed there later by investigators. Defendant immediately asked to approach the bench, asserting that the State had not provided the photographs during discovery in this case. The State asserted that the photographs had been in discovery “for some time” and that the photographs were also mentioned in reports for Defendant‘s separate probation violation case. Defendant again asserted that he was not provided the photographs—to include Exhibit 2, which inaccurately shows the Xanax and fentanyl baggies on the nightstand—in discovery, nor were Defendant‘s probation reports provided in this case.
{5} The district court heard argument outside the presence of the jury about the admissibility of the photographs. Defendant argued that admission would be prejudicial because counsel was not able to advise Defendant on all of the evidence the State had against him and Defendant believed that the other drugs photographed on the nightstand had been moved from their original locations before the photographs were taken, such that defense counsel would have used the photographs in pretrial interviews and to impeach the State‘s witnesses. The district court then questioned the parties about production of the photographs during discovery. The State conceded that it could not definitively state whether the photographs were produced during discovery; however, the State again asserted that black and white copies of the photographs were provided in Defendant‘s separate probation violation case.
{7} The probation officer‘s testimony regarding the photographs then resumed, and she testified that three of the photographs, including Exhibit 2—were taken when she first arrived to the room, showing the scene as it was before anything was moved during the investigation, and the fourth photograph was taken after the sergeant collected and placed items in the box for transport to the police department. The district court admitted the photographs, including Exhibit 2, over Defendant‘s objections.
{8} The sergeant testified next and agreed that the first three photographs, including Exhibit 2, depicted the nightstand as it was when he arrived at Defendant‘s room, with the methamphetamine, baggie of Xanax pills, baggie of fentanyl pills, a blowtorch, and a crushed can with methamphetamine residue visible. He also explained that the fourth photograph depicted the nightstand after he had searched the room and “collected everything.” On cross-examination, Defendant attempted to impeach the sergeant‘s earlier direct testimony with his police report, which stated that the baggies containing fentanyl and Xanax were found in the girlfriend‘s purse. The sergeant claimed that his testimony on direct examination, that these items were found on the nightstand, was correct and that any misrepresentation was in his police report.1
{9} Additionally, the sergeant was qualified as an expert in narcotics investigations and narcotics trafficking, and testified that the crystalized rock tested positive for methamphetamine and that the amount of methamphetamine found in Defendant‘s motel room, “approximately ten grams,” was not that of a typical user. The sergeant testified that he has seen this amount in other trafficking cases and that based on his training and experience, “there was narcotics trafficking happening in that room,” because of “the amount of methamphetamine located along with the scale and the baggies located.” He then reiterated his opinion that, “I believe that there was indeed narcotics trafficking happening from that hotel room” based on the scale, labelled and prepackaged baggies, and amount of methamphetamine found.
{10} The State then had a forensic chemistry expert testify as to testing of the drugs found. At the close of the State‘s case, Defendant moved for directed verdicts on all charges. The district court granted the motion with respect to Defendant‘s heroin charge because the evidence showed the heroin was found in the girlfriend‘s purse, but denied
{11} Defendant then recalled the sergeant as their only witness. The sergeant continued to insist that the photographs depicted Defendant‘s motel room as it was when he arrived, with the box, methamphetamine, Xanax, and fentanyl all on the nightstand, again asserting that his police report and preliminary examination testimony were inaccurate. After the sergeant‘s testimony, the district court reconsidered Defendant‘s motion for directed verdict. Defendant argued that there was contradictory evidence as to where the remaining drugs were found and that had the photographs been disclosed before trial, Defendant would have been able to show that the photographs were taken after the investigation began. At this point, the district court admitted it was reconsidering its previous ruling on the disclosure violation, as it was unclear whether allowing Defendant to question the officer was enough to overcome the prejudice to Defendant because it was controverted when the photographs were taken.
{12} As a remedy, the district court offered to consider either allowing Defendant to recall and question the probation officer further or declaring a mistrial and asked the parties to consider how they wanted to move forward. Defendant declined to request a mistrial and instead argued to “reopen the case” to use a screenshot of the sergeant‘s body camera footage from that day to impeach witnesses; the State deferred to the district court on how to handle its late disclosure. The judge agreed to reopen the case for the Defendant to recall one witness.
{13} Defendant then recalled the sergeant for a second time. The sergeant again testified that he saw the Xanax, fentanyl, and baggies were on the nightstand when he entered the room. Defendant showed the sergeant a screenshot of his body camera footage, which depicted the nightstand as it was when the sergeant entered the room. The screenshot showed the box on the nightstand with the crystalized rock inside of it, but no fentanyl, Xanax, or baggies were visible. The screenshot conclusively established that the probation officer and sergeant had both given inaccurate testimony about what was found on the nightstand when law enforcement arrived. Given this indisputable evidence, the sergeant admitted that except for the methamphetamine, all other drugs were found in the girlfriend‘s purse as stated in his police report. Based on this impeachment, the district court granted Defendant‘s renewed motion for directed verdict with respect to his charges for Xanax and fentanyl.
{14} The jury convicted Defendant on the sole remaining charge of trafficking methamphetamine by possession with intent to distribute. After trial, Defendant filed a motion for judgment notwithstanding the verdict arguing that there was “insufficient evidence to support the jury[‘s] verdict on the element of intent to transfer” and that the State violated Brady principles by not disclosing the officer‘s photographs before trial. See Brady v. Maryland, 373 U.S. 83 (1963).
{15} The district court reviewed the alleged Brady violation as a motion for a new trial separate from the motion for judgment notwithstanding the verdict, explaining that this
{16} Defendant now appeals.
DISCUSSION
{17} On appeal, Defendant argues that (1) the district court erred in admitting the undisclosed photographs into evidence; (2) the sergeant‘s expert testimony about the ultimate issue of trafficking constituted plain error; and (3) the State failed to present sufficient evidence that Defendant intended to distribute methamphetamine. We consider Defendant‘s arguments in turn.
I. Admission of Undisclosed Photographs
{18} First, Defendant contends that the district court erred by admitting the previously undisclosed photographs at trial. Specifically, Defendant asserts that the late disclosure of the probation officer‘s photographs violated Defendant‘s right to due process and the State‘s discovery obligations. The State asserts that reversal is not warranted in this case because the “record shows that the late disclosure was, at most, inadvertent,” and Defendant had knowledge of their existence since copies of the photographs were attached to Defendant‘s probation violation report.2 We conclude that the district court‘s admission of the photographs does not constitute reversible error.
{19} The suppression of favorable evidence violates a defendant‘s due process rights. See State v. Huerta-Castro, 2017-NMCA-026, ¶ 33, 390 P.3d 185, abrogated on other grounds by Ramirez v. Marsh, 2025-NMSC-050, ¶ 34 n.6, 580 P.3d 768. New Mexico equates disclosure violations “to a charge of prosecutorial misconduct, which appellate courts review for an abuse of discretion.” Huerta-Castro, 2017-NMCA-026, ¶ 32. “In order to find an abuse of discretion, we must conclude that the decision below was against logic and not justified by reason.” State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701. Although Brady is applicable only when it is revealed after trial that the state failed to disclose material and exculpatory evidence to the accused, we use a similar analysis when evidence is disclosed for the first time during trial and evaluate “whether the late tender has impeded the effective use of evidence in such a way that impacts the fundamental fairness of the proceedings.” Huerta-Castro, 2017-NMCA-026, ¶ 36. To determine whether a late disclosure is reversible error we consider, “(1) whether the [s]tate breached some duty or intentionally deprived the defendant of [the] evidence; (2) whether the improperly non-disclosed evidence was material; (3) whether the non-disclosure of the evidence prejudiced the defendant; and (4) whether the trial court cured the failure to timely disclose the evidence.” State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 31, 142 N.M. 120, 164 P.3d 1. “[A] defendant bears the burden of proving [they were] prejudiced by non-disclosure of evidence.” State v. Ortega, 2014-NMSC-017, ¶ 43, 327 P.3d 1076.
{20} Assuming that the first three Mora factors are met, the issue here is whether the district court cured the State‘s failure to timely disclose the photographs. See Mora, 1997-NMSC-060, ¶ 44 (explaining that “resolution of this issue hinges on whether the trial court cured the failure to timely disclose the evidence” when assuming the first three factors were met).
{21} “In determining prejudice to a defendant where the state initially deprives [the] defendant of the evidence but later produces the evidence, the reviewing court should consider whether the failure to timely disclose the evidence was cured by the trial court.” Id. (internal quotation marks and citation omitted). A district court‘s curative action “concerns the form of remedy, or sanction imposed by the district court in response to the untimely disclosure.” State v. Ruiz, 2007-NMCA-014, ¶ 54, 141 N.M. 53, 150 P.3d 1003. Defendant argues the district court‘s remedies did not cure the State‘s failure to timely disclose the photographs. We disagree.
{22} Instead of requesting a mistrial when given the opportunity to do so by the district court, Defendant opted to reopen the case to recall and impeach the sergeant with screenshots from his body camera. The impeachment revealed that two of the State‘s witnesses, the sergeant and the probation officer, had provided false testimony at trial as it became apparent that the photographs were taken after evidence had been moved by investigating officers rather than showing the nightstand as it was when law enforcement arrived, as the witnesses had initially testified. In fact, the sergeant ultimately admitted that, except for the methamphetamine, all of the other drugs had been located in the girlfriend‘s purse and not on the nightstand. This impeachment testimony was in accord with what the sergeant had stated in his police report, pretrial interview, and sworn testimony before trial. As a result, the district court granted Defendant‘s renewed motion for directed verdict with respect to the fentanyl and Xanax charges. Additionally, although the district court did not grant Defendant‘s motion with respect to the methamphetamine possession with intent to distribute charge, as we explain below, there was other evidence to support submission of this charge to the jury.
{23} In Mora, the district court also gave defense counsel the opportunity to reexamine any witness that had testified before the evidence at issue was disclosed, but counsel chose not to do so. 1997-NMSC-060, ¶ 46. The defendant argued that their conviction should be reversed because of the state‘s late disclosure, see id. ¶ 43, but
II. Ultimate Issue Testimony
{24} Defendant next argues that the district court erred in permitting the sergeant to opine that Defendant was guilty of trafficking methamphetamine, reaching the ultimate issue in this case. However, Defendant concedes that because this issue was not objected to at trial or preserved for appeal, this Court may review only for plain error. The State agrees that plain error is the correct standard of review, and asserts that there was no plain error because Defendant has not shown that the form of the sergeant‘s expert opinion in answer to two questions created grave doubts about the validity of the verdict. Assuming that the sergeant‘s statements were in error, we conclude that the testimony was not in plain error.
{25} “Unpreserved evidentiary errors are reviewable on appeal under a plain error standard.” State v. Paglinawan, 2026-NMCA-044, ¶ 11, 586 P.3d 346 (internal quotation marks and citation omitted);
{26} Expert witnesses cannot testify directly to a defendant‘s intent or “state their opinion of the defendant‘s guilt,” but they can testify about trafficking versus personal use quantities of drugs. State v. Rael-Gallegos, 2013-NMCA-092, ¶¶ 29-30, 308 P.3d 1016; see
{27} While the investigating sergeant was qualified as a testifying expert in narcotics investigations and narcotics trafficking, Defendant argues that the sergeant‘s expert testimony crossed the line from guiding the jury regarding indica of narcotics trafficking generally, to offering his opinion regarding Defendant‘s guilt because the sergeant testified twice that drugs were being trafficked from Defendant‘s motel room. In the first instance, the sergeant was asked, “With everything you found, different items, amounts, what does your training and investigations, your experience tell you was going on here?” The sergeant answered, “there was narcotics trafficking happening in that room” based on “the amount of methamphetamine located along with the scale and the baggies located.” Later in his testimony, the sergeant was again asked his expert opinion based on his investigations over the years and answered, “With everything that
{28} Although the sergeant‘s challenged testimony alone appears to be opinion testimony of Defendant‘s guilt regarding trafficking methamphetamine, we must view his statements in the context of his testimony as a whole to determine whether they amounted to plain error. See State v. Dylan J., 2009-NMCA-027, ¶ 15. Although Defendant has argued that the sergeant‘s answers to two questions asked by the State were impermissible statements about Defendant‘s guilt of drug trafficking, Defendant‘s brief fails to provide any information about the context of these two questions and answers and makes no argument about why the answers affected the overall fairness of the trial. As the State notes in its answer brief, Defendant simply asserts, without providing a developed argument, that this expert testimony “was likely to have impacted the jury‘s verdict.” In his reply brief, Defendant briefly argues that the sergeant‘s testimony was unfairly prejudicial and made in plain error because it impacted Defendant‘s substantial rights by infringing on a determination belonging to the jury—whether Defendant was guilty of possession with intent to traffic methamphetamine. Evidence is unfairly prejudicial when “the prejudicial effect of expert testimony substantially outweighs its probative value.” State v. Yepez, 2021-NMSC-010, ¶ 19, 483 P.3d 576; accord
III. Sufficiency of the Evidence
{30} Sufficient evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. When assessing the sufficiency of the evidence, this Court “determine[s] whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt.” State v. Consaul, 2014-NMSC-030, ¶ 42, 332 P.3d 850 (internal quotation marks and citation omitted). In doing so, this Court views the evidence “in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We do not reweigh evidence or substitute our judgment for that of the fact-finder. Id. ¶ 30.
{31} In order to prove trafficking of methamphetamine by possession with intent to distribute, the jury instructions required the State to prove that “Defendant intended to transfer [methamphetamine] to another.” This intent can be inferred from the surrounding facts and circumstances such as the quantity of drugs, the presence of paraphernalia associated with distribution, or expert testimony regarding the inconsistency of the quantity with personal use. See State v. Hubbard, 1992-NMCA-014, ¶ 15, 113 N.M. 538, 828 P.2d 971.
{32} Here, the State presented testimony and a forensic laboratory report that the crystalized rock found in Defendant‘s motel room tested positive for methamphetamine and weighed 8.74 grams. The sergeant, a qualified expert in narcotics investigations and narcotics trafficking, explained that the quantity of methamphetamine found in Defendant‘s motel room was more indicative of trafficking than personal use because a user typically possesses between 1.7 grams and 3.5 grams, while a heavy user typically possesses between 3.5 grams and 5 grams. He then testified that Defendant was charged with trafficking based on the quantity of methamphetamine found in the motel room, as well as the scale and baggies present.
{33} In Hubbard, this Court reasoned that expert testimony concerning the items and quantity of drugs found at a defendant‘s residence was sufficient to support a conviction for trafficking by possession with intent to distribute. See 1992-NMCA-014, ¶¶ 10-14. Similarly, here a reasonable juror could infer that Defendant intended to distribute based on the quantity of the methamphetamine, the scale, and the baggies found in the motel room. Although Defendant argues that this evidence could also be consistent with personal use, “[o]ur role is only to determine whether substantial evidence exists to support the conviction and not whether evidence exists to support an opposite result.” Id. ¶ 12.
CONCLUSION
{35} For the foregoing reasons, we affirm.
{36} IT IS SO ORDERED.
SHAMMARA H. HENDERSON, Judge
WE CONCUR:
JACQUELINE R. MEDINA, Chief Judge
JANE B. YOHALEM, Judge