June 22, 2026- State of New Mexico v. Monique Martinez, No. A-1-CA-41901

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: June 22, 2026	3
No. A-1-CA-41901	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
MONIQUE MARTINEZ,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	10
Stephen P. Ochoa, District Court Judge	11
Raúl Torrez, Attorney General	12
Michael J. Thomas, Assistant Solicitor General	13
Albuquerque, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Mary Barket, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 6/22/2026 10:40 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Monique Martinez appeals her conviction for trafficking by	3
possession with intent to distribute methamphetamine, contrary to NMSA 1978,	4
Section 30-31-20(A)(3)(c) (2006). Defendant challenges the admission of a law	5
enforcement 	officer’s 	expert 	opinion 	that 	the 	evidence 	in 	Defendant’s 	case,	6
“collectively, was evidence of trafficking.” Because the objections raised on appeal	7
were not preserved in the district court, we review the admission of this and other	8
similar testimony by the law enforcement officer in this case for plain error. The	9
majority agrees that the officer’s expert testimony in this case, stating his opinion	10
that “[t]here was trafficking of methamphetamine” based on the evidence found in	11
the motel room, was plain error. We reverse on that basis.	12
{2} 	The three-judge panel of this Court, however, does not agree on where the line	13
should 	be 	drawn 	between 	permissible 	expert 	opinion 	testimony 	by 	a 	law	14
enforcement 	officer 	in 	a 	drug 	trafficking 	case 	that 	educates 	the 	jury 	and	15
impermissible testimony encroaching on the jury’s role in deciding guilt or	16
innocence. 	The 	author 	concludes 	that 	New 	Mexico 	law 	requires 	that 	law	17
enforcement officer expert testimony in a trafficking case be limited to testimony	18
that educates the jury about the distinctions between the typical customs and	19
practices of those who use narcotics and those who traffic narcotics, and that an	20

2
expert opinion that goes further and gives the officer’s opinion based on the evidence	1
introduced in the defendant’s case, advising the jury that, in the officer’s opinion,	2
that certain evidence listed by the officer in his testimony “was for trafficking” or	3
“indicates or is indicative of trafficking,” or “is consistent with trafficking” has no	4
purpose other than to tell the jury how to decide the case, and is therefore	5
impermissible.	6
{3} 	The special concurrence disagrees with the author’s conclusion that New	7
Mexico law prohibits expert opinion testimony that the evidence in front of the jury	8
“is trafficking” in the expert’s opinion, regardless of how the officer’s opinion is	9
phrased. The special concurrence concludes that a law enforcement officer is	10
permitted to testify that the evidence in the case is consistent with trafficking, without	11
encroaching impermissibly on the exclusive function of the jury in determining a	12
defendant’s guilt or innocence, so long as the expert does not say that the defendant	13
is trafficking or that the evidence indicates trafficking or the evidence shows the	14
defendant’s intent to traffic.	15
{4} 	Because the majority agrees that under our plain error standard, the admission	16
of the expert testimony in this case—repeated testimony that, in the expert’s opinion,	17
the evidence shows Defendant was trafficking—significantly impaired Defendant’s	18
rights and put the validity of the verdict in doubt, we reverse and remand for a new	19
trial.	20

3
BACKGROUND	1
{5} 	Defendant was convicted by a jury of one count of trafficking by possession	2
with intent to distribute methamphetamine, contrary to Section 30-31-20(A)(3)(c);	3
possession of a controlled substance (heroin), contrary to NMSA 1978, Section 30-	4
31-23(A), (E) (2011, amended 2021); and possession of drug paraphernalia, contrary	5
to NMSA 1978, Section 30-31-25.1(A), (C) (2001, amended 2022). Defendant was	6
separately tried and convicted as a felon in possession of a firearm, contrary to	7
NMSA 1978, Section 30-7-16(A)(1) (2019, amended 2022). All of the charges were	8
based on a search on April 1, 2019, pursuant to a warrant, of a motel room in	9
Alamogordo, New Mexico, occupied by Defendant and her boyfriend.1 Defendant	10
appeals solely from her conviction for trafficking.	11
{6} 	Apart from the testimony of a laboratory technician who testified that the	12
substances recovered from the search were narcotics, the State’s sole witness at trial	13
was law enforcement officer Agent Brad Nordquist. The prosecutor first questioned	14
Agent Nordquist about his training and experience in the enforcement of narcotics	15
laws. Agent Nordquist testified to his work over the previous five years on the Otero	16
1The jury rejected Defendant’s argument that she was in possession of only
the small amount of narcotics found in her purse, and entered a verdict of guilty of
trafficking based on the evidence as a whole found in the search of the motel room.
Defendant does not challenge the jury’s decision that all of the drugs in the motel
room were in Defendant’s possession or control. We therefore do not include the
evidence relevant solely to this argument.

4
County Sheriff’s Narcotics Task Force and his experience as an undercover	1
confidential informant on narcotics trafficking. The State did not ask the district	2
court to qualify Agent Nordquist as an expert at the conclusion of the State’s	3
evidence on his qualifications and the defense did not object to his not being	4
qualified or ask for an opportunity to voir dire.	5
{7} 	The prosecutor next proceeded to question Agent Nordquist for approximately	6
an hour about his specialized knowledge, based on his experience and training,	7
concerning: 	(1) 	the 	appearance 	of 	methamphetamine 	and 	heroin; 	(2) 	how	8
methamphetamine and heroin are generally packaged for sale versus for personal	9
use; (3) the quantities of methamphetamine commonly offered for sale on the street;	10
(4) the amount generally purchased for personal use by the average street buyer and	11
the cost of that amount; (5) how methamphetamine and heroin are typically ingested;	12
(6) how a scale is used by drug traffickers to weigh small ready-to-sell quantities of	13
narcotics, which are then transferred to small plastic baggies for sale; (7) the percent	14
of drug traffickers, in Agent Nordquist’s experience, who have guns; (8) the reasons	15
traffickers generally have one or more guns; (9) why it is common for drug	16
traffickers to deal drugs out of a motel rather than a residence; (10) that the quantities	17
of methamphetamine most people possess for personal use range from 3 to 5 grams;	18
(11) that in 2019 a gram of methamphetamine on the street cost approximately fifty	19
to sixty dollars, and most addicts could generally afford to buy no more than 3 to 5	20

5
grams for personal use; and (12) that “a big indicator of trafficking or distribution”	1
as opposed to possession for personal use, is possession of multiple packages, small	2
plastic baggies, scales, different denominations of cash, and one or more firearms.	3
{8} 	After eliciting this testimony about drug trafficking, the amount of drugs	4
generally possessed by traffickers versus drug users, the items generally used to	5
traffic drugs versus the items used to ingest drugs, and the purpose of each type of	6
item identified as commonly used by drug traffickers based on Agent Nordquist’s	7
experience and training as a law enforcement officer specializing in narcotics,2 the	8
State next questioned Agent Nordquist about the April 1, 2019, search of the motel	9
room occupied by Defendant and her boyfriend, a search Agent Nordquist conducted	10
along with other officers.	11
{9} 	Agent Nordquist explained that the only person identified by name in the	12
warrant was Defendant’s boyfriend, but that the affidavit and warrant indicated that	13
an unidentified woman was likely to be present as well. Agent Nordquist testified	14
that when he entered the motel room with the other agents after using a battering	15
2Although the State did not ask the district court to qualify Agent Nordquist
as an expert in drug possession and trafficking until near the end of his testimony,
we have held that there is no error when a law enforcement officer provides expert
testimony and the record supports their qualifications to do so. 	See State v.
Paglinawan, 	2026-NMCA-044, 	¶ 15, 	586 	P.3d 	346. 	Agent 	Nordquist’s
qualifications as an expert are not challenged on appeal and much of his questioning
by the State prior to his designation as an expert by the district court patently
involved specialized knowledge about narcotics trafficking.

6
ram to open the door, Defendant was standing between the two beds in the room,	1
and Defendant’s boyfriend was in the bathroom. Agent Nordquist went into the	2
bathroom where he described seeing several items of drug paraphernalia on the lip	3
of the bathtub, as well as several baggies in the toilet that were filled with a white	4
crystalline substance, which Defendant’s boyfriend was trying to flush down the	5
toilet. Agent Nordquist fished two baggies out of the toilet. Laboratory analysis later	6
identified the white crystalline substance inside the baggies as methamphetamine.	7
Both the drug-filled baggies and the objects on the bathtub were introduced into	8
evidence as exhibits at trial.	9
{10} 	Agent Nordquist described the search of the motel room item by item, with	10
the prosecutor questioning him to lay the foundation for the admission of each of the	11
thirty-one exhibits offered by the State. Most of the exhibits were photographs taken	12
during the search that illustrated Agent Nordquist’s description of the search. The	13
photographs included close-up views of open furniture drawers and of an open	14
suitcase searched by the agents. Agent Nordquist testified that the agents found	15
women’s clothes in the suitcase along with a .25 caliber firearm in an inner sleeve,	16
and introduced photographs of these items. In a medicine bag associated with the	17
suitcase, 	agents 	found 	and 	photographed 	a 	glass 	pipe 	wrapped 	in 	a 	pink	18
handkerchief. Other items found in the motel room during the search included a	19
digital scale, a box of plastic baggies, and a jeweler’s bag, each, with narcotic residue	20

7
on them. The State introduced these objects into evidence. Exhibits 14 and 15 are	1
photographs of a used glass smoking pipe found toward the western edge of the desk	2
area in the motel room, with a woman’s makeup bag or carrying case nearby. There	3
was a purse on the desk that contained an identification card belonging to Defendant,	4
two tied-off plastic baggies with drug residue on them, and a scoop that Agent	5
Nordquist described as usable either for separation of narcotics for sale or for	6
personal consumption of narcotics. Law enforcement found a syringe in the	7
bathroom that had been used to inject heroin, according to Agent Nordquist.	8
{11} 	On the second bed in the room, Agent Nordquist located a wallet belonging	9
to Defendant’s boyfriend, which contained twenty-dollar bills. Agent Nordquist	10
estimated that the confiscated drugs retrieved from the toilet weighed approximately	11
14 grams in their wet state. Finally, Agent Nordquist was questioned by the	12
prosecutor as to whether, in his training and experience, the digital scale with	13
residue, the baggies with residue, and the jeweler’s bag with residue, “indicate[d]	14
preparation for trafficking.” Agent Nordquist responded that in his expert opinion	15
“they are an indication of trafficking narcotics.”	16
{12} 	At the conclusion of this portion of his testimony, the State proffered Agent	17
Nordquist as an expert in “street level narcotics trafficking” and asked the district	18
court to allow Agent Nordquist “to render an opinion as to trafficking.” Defendant’s	19
counsel asked to voir dire Agent Nordquist “on his expertise.” During voir dire,	20

8
Defendant asked about Agent Nordquist’s educational background, his training and	1
experience as a police officer and narcotics agent, his current position, his previous	2
experience 	with 	testifying 	in 	court, 	and 	expressed 	skepticism 	in 	his 	cross-	3
examination questions about whether Agent Nordquist’s expertise extended to the	4
type of drugs and the manner in which drugs were trafficked in April 2019 when he	5
participated in the search of the motel room. Agent Nordquist denied that much had	6
changed in the four years between 2019 and his testimony in court. When defense	7
counsel concluded the voir dire, counsel stated that he was renewing his objection.	8
The district court asked, “To [Agent Nordquist’s] testimony today?” Defense	9
counsel stated, “Yes.”3 The court then granted the State’s motion, qualifying Agent	10
Nordquist as an expert “in street level narcotics trafficking.”	11
{13} 	The 	State’s 	examination 	of 	Agent 	Nordquist 	then 	continued 	with 	the	12
following questions and responses by Agent Nordquist:	13
State: Do you have an opinion based on your experience and training,	14
as to what the evidence in this case indicates with regard to the	15
methamphetamine that was located?	16
Agent Nordquist: There was trafficking of methamphetamine coming	17
out of the [motel] room.	18
State: Specifically with regard to the evidence that was found?	19
Agent Nordquist: I may not be understanding your questioning.	20
3The objections, and the judge’s ruling are very difficult to hear. Neither party,
however, objected to this Court’s understanding of the transcript at oral argument.

9
State: You phrase it, “there was trafficking.” I’m referring to the	1
evidence that was there at the time that you located it. Based on	2
the evidence that was found [inaudible] whether the drugs that	3
were found, the methamphetamine specifically, was for personal	4
use or for distribution?	5
Agent Nordquist: What I found collectively was evidence of trafficking	6
methamphetamine.	7
State: Can you just perhaps make a list of the items that indicate to you	8
that it was for trafficking?	9
Agent Nordquist: The amount of methamphetamine, the manner and	10
ways in which it was bagged, the plastic baggies, the digital scale	11
with the white crystalline residue and the currency located were	12
to me all indicators that it was trafficking of methamphetamine.	13
State: And what role if any did the firearm play in your analysis?	14
Agent Nordquist: We call it “tools of the trade” for protection against	15
theft and compensation of the product and/or currency.	16
On redirect, the State again asked Agent Nordquist:	17
State: Taking into account all the evidence in the case, not the isolated	18
evidence that was in her purse, what’s your opinion as to the	19
amount of methamphetamine in this case?	20
Agent Nordquist: It was being used for trafficking.	21
{14} 	The only other witness at trial was a laboratory technician who testified that	22
the substances recovered from the motel room were methamphetamine and heroin.	23
According to the technician, the plastic baggies of methamphetamine retrieved from	24
the toilet weighed, when dry, around 0.424 grams, 7.149 grams, 0.507 grams, and	25

10
0.295 grams or in total about 8 grams. The amounts found in Defendant’s purse were	1
0.516 grams of methamphetamine and 0.076 grams of heroin.	2
{15} 	In closing argument, the State reminded the jury that Agent Nordquist’s	3
testimony 	was 	reliable 	because 	he 	was 	an 	“expert 	in 	street-level 	narcotics	4
trafficking.” The jury convicted Defendant of trafficking. Defendant appealed.	5
DISCUSSION	6
{16} 	This appeal asks this Court to answer the following questions: What are the	7
bounds of a law enforcement officer’s expert testimony in a drug trafficking case?	8
and did Agent Nordquist’s expert opinion, that based on the evidence found in the	9
motel room, the methamphetamine, “was for trafficking” exceed those bounds?	10
{17} 	Before we address these questions, however, we first need to resolve the	11
dispute between the parties as to whether Defendant preserved the issue raised on	12
appeal for our review. If not preserved, we review an evidentiary objection for plain	13
error. See State v. Contreras, 1995-NMSC-056, ¶ 23, 120 N.M. 486, 903 P.2d 228	14
(noting that appellate courts review unpreserved evidentiary objections for plain	15
error). Finding that Defendant did not preserve the question she now raises on	16
appeal, we conclude that our review is for plain error.	17
{18} 	The starting point for our plain error analysis is to determine whether there	18
was error in the admission of the evidence. See State v. Gwynne, 2018-NMCA-033,	19
¶ 27, 417 P.3d 1157 (noting that the first criteria for plain error is that “there must	20

11
be . . . error”). 	We 	therefore 	next 	address 	whether 	the 	admission 	of 	Agent	1
Nordquist’s opinion that the methamphetamine found in Defendant’s possession	2
“was for trafficking,” that the methamphetamine found in Defendant’s possession	3
“was being used for trafficking,” that “collectively, [the evidence] was trafficking,”	4
and that “[t]he amount of methamphetamine, the manner and ways in which it was	5
bagged, the plastic baggies, the digital scale with the white crystalline residue and	6
the 	currency 	located 	were 	to 	me 	all 	indicators 	that 	it 	was 	trafficking 	of	7
methamphetamine,” repeated multiple times to the jury, improperly communicate to	8
the jury Agent Nordquist’s opinion that Defendant was guilty of trafficking and that	9
the jury should find her guilty.	10
{19} 	Concluding that the admission of Agent Nordquist’s opinion on Defendant’s	11
guilt is inconsistent with both this Court’s opinion in State v. Rael-Gallegos, 2013-	12
NMCA-092, 308 P.3d 1016 and with our Supreme Court precedent limiting the	13
admission of expert testimony on an ultimate issue under Rule 11-704 NMRA, we	14
next determine whether the improper admission of Agent Nordquist’s expert	15
testimony meets the high standard required to reverse for “plain error.” Concluding	16
that this error affected substantial rights of the accused and raised doubt about the	17
integrity of the proceedings, we reverse and remand for retrial with direction to limit	18
law enforcement expert testimony asking the law enforcement officer to give their	19
opinion as to whether Defendant was guilty of drug trafficking.	20

12
I. 	The Arguments Made on Appeal Were Not Preserved in the District	1
Court for Review on Appeal	2
{20} 	“To preserve an issue for review, it must appear that a ruling or decision by	3
the trial court was fairly invoked.” Rule 12-321(A) NMRA. “The preservation rule	4
provides the lower court an opportunity to correct any mistake, provides the	5
opposing party a fair opportunity to show why the court should rule in its favor, and	6
creates a record from which this Court may make informed decisions.” Yurcic v. City	7
of Gallup, 2013-NMCA-039, ¶ 35, 298 P.3d 500 (omission, internal quotation	8
marks, and citation omitted).	9
{21} 	The State contends that Defendant objected only to Agent Nordquist’s	10
qualifications to testify as an expert in narcotics trafficking, and that this objection	11
did not alert the district court or the opposing party to the error she now claims on	12
appeal, and therefore did not satisfy the purposes of preservation.	13
{22} 	We agree with the State that Defendant’s voir dire of Agent Nordquist,	14
followed by a general objection to his testifying as an expert did not preserve the	15
claim of error Defendant now raises on appeal concerning the admission of expert	16
testimony on the ultimate issue of Defendant’s guilt or innocence. Neither the district	17
court nor the State were informed of the nature of Defendant’s objection, and	18
therefore, there was no opportunity to respond or to exclude the improper testimony	19
now complained of on appeal. Our review, therefore, is solely for plain error.	20

13
{23} 	As we previously explained, we begin by examining whether the admission	1
of Agent Nordquist’s challenged opinion testimony was error.	2
II. 	Agent 	Nordquist’s 	Challenged 	Testimony 	Exceeded 	the 	Bounds 	of	3
Permissible Expert Testimony	4
{24} 	Defendant argues that the district court erred in admitting Agent Nordquist’s	5
testimony that, based on his experience and training as a narcotics agent, the	6
evidence found in Defendant’s possession “was trafficking.” Defendant contends	7
that the agent’s testimony impermissibly intruded on the jury’s exclusive role in	8
deciding guilt or innocence. According to Defendant, the only permissible role for	9
an expert witness in a drug trafficking case is to educate the jury about the typical	10
customs and practices of drug traffickers and of those who possess drugs for their	11
own use. It must then be left to the jury, having been educated by the expert on the	12
practices, methods, and items commonly used to prepare drugs for sale, to weigh	13
both the expert testimony and the other evidence in the case and to decide the guilt	14
or innocence of the defendant, applying common sense and community standards.	15
{25} 	The State argues in response that expert testimony on an “ultimate issue” is	16
expressly permitted by Rule 11-704, and that only expert testimony that directly	17
“tell[s] the jury what to do” or “impl[ies] that the question of guilt or innocence ha[s]	18
been predetermined” would “cross the line into the territory of the ultimate jury	19
determination of that defendant’s guilt or innocence.” According to the State,	20
because there was no suggestion to the jury “that [it] was mandated to reach a legal	21

14
conclusion,” the challenged testimony did not encroach impermissibly on the	1
exclusive function of the jury.	2
{26} 	Both parties rely on New Mexico Rules of Evidence 11-702 NMRA, and -704,	3
and both parties claim that their position is consistent with this Court’s opinion in	4
Rael-Gallegos, 2013-NMCA-092, the only precedential opinion from a New Mexico	5
appellate court defining the line between permissible and impermissible expert	6
testimony by a law enforcement officer in a drug trafficking case. The parties sharply	7
disagree about the meaning of this Court’s decision in Rael-Gallegos and about how	8
that decision should be applied to Agent Nordquist’s testimony in this case. Because	9
we are bound to follow our own precedent, and because we believe Rael-Gallegos	10
resolves the evidentiary question raised in this case, we address it first before turning	11
to the parties’ arguments based on our rules governing the admission of expert	12
opinion testimony and our precedent guiding our construction of those rules.	13
A. 	Rael-Gallegos	14
{27} 	In Rael-Gallegos, this Court applied Rules 11-702 and -704, New Mexico	15
precedent construing these rules, and examples taken from other states’ decisions	16
concerning expert evidence in drug trafficking cases specifically to the expert	17
testimony of a law enforcement officers in a drug trafficking case—an issue with	18
which our appellate courts and the courts of other states have struggled. Given the	19
contradictions in the arguments made by the parties and the confusion we find in this	20

15
Court’s nonprecedential opinions in the years following our decision in Rael-	1
Gallegos,4 we take this opportunity to clarify our holding in Rael-Gallegos.	2
{28} 	Rael-Gallegos draws what the opinion acknowledges to be “a fine line”	3
between permissible expert testimony (1) “as to typical users and traffickers based	4
on the amount of drugs in their possession, and (2) testimony as to whether “the	5
amounts in the possession of the subject defendant indicated a purpose to traffic and	6
not to use.” 2013-NMCA-092, ¶ 35 (emphasis added). Rael-Gallegos focuses on this	7
stated distinction between expert testimony about the customs and practices typical	8
of drug trafficking in general, and expert opinion that the evidence in the case being	9
tried—the amount of drugs and the nature of the items in the possession of the	10
defendant—shows that the defendant “is trafficking” or that the defendant’s intent	11
is to traffic. Intent to distribute is the sole element that distinguishes possession of	12
drugs for personal use from possession of drugs for distribution and, thus, testimony	13
that the defendant “intended to traffic” is tantamount to telling the jury the defendant	14
“is 	guilty 	of 	trafficking.” 	See 	§ 	30-31-20(A)(3) 	(defining 	“traffic” 	to 	mean	15
“possession with intent to distribute” (emphasis added)); see also Rael-Gallegos,	16
4 The 	dissent 	in 	part 	and 	concurrence 	in 	part, 	in 	our 	nonprecedential
memorandum opinion in State v. Renick, A-1-CA-36319, mem. op. ¶ 27 (N.M. Ct.
App. Nov. 18, 2019) (nonprecedential) (Ives, J., dissenting in part and concurring in
part), points to confusion in this Court’s memorandum opinions applying Rael-
Gallegos. We find the discussion of Rael-Gallegos in Judge Ives dissenting opinion
persuasive and rely on its reasoning throughout this opinion.

16
2013-NMCA-092, ¶ 29 (treating the officer’s expert opinion that a defendant intends	1
to traffic as simply another way of testifying to the officer’s opinion that the	2
defendant is guilty of trafficking).	3
{29} 	The expert testimony challenged on appeal in Rael-Gallegos was a law	4
enforcement 	officer’s 	observation, 	based 	on 	her 	training 	and 	experience,	5
“differentiating between possession amounts and trafficking amounts of crack	6
cocaine.” 	Id. 	¶ 25. We concluded in 	Rael-Gallegos 	that the officer’s expert	7
testimony was admissible because “[r]ead in context,” the officer was describing the	8
circumstances she found during her career in other cases when she was involved in	9
an arrest for trafficking, and she “did not relate those cases to [the d]efendant’s case.”	10
Id. ¶ 32. The officer “was not asked, nor did she offer, her opinion as to whether [the	11
d]efendant was trafficking cocaine.” Id.	12
{30} 	Rael-Gallegos concluded that the officer’s testimony was admissible because	13
the officer avoided giving her opinion about whether the evidence in the defendant’s	14
case showed that the defendant possessed the drugs with the intent to distribute them.	15
Id. ¶ 32. This Court distinguishes “[t]he type of testimony given by [the officer] as	16
to 	typical 	circumstances 	in 	law 	enforcement 	[that] 	can 	assist 	the 	jury 	in	17
understanding intent as to drug use versus drug trafficking,” id. ¶ 37 (emphasis	18
added), and that “educat[es] the jury in regard to what factors, in [the officer’s]	19
experience,” indicate trafficking, id. ¶ 33, from impermissible testimony giving the	20

17
jury the expert’s opinion that “the amounts in the possession of the subject defendant	1
indicated a purpose [or intent] to traffic and not to use.” Id. ¶ 35 (emphasis added).	2
{31} 	In order to clarify “when an expert crosses the fine line constituting error,” id.	3
¶ 35, Rael-Gallegos quotes examples of admissible and inadmissible expert opinion	4
from appellate decisions in other states. The testimony at issue in Melton v. State,	5
824 So. 2d 948, 950 (Fla. Dist. Ct. App. 2002), and Yates v. State, 699 S.E.2d 43, 44	6
(Ga. Ct. App. 2010), is quoted by this Court in Rael-Gallegos as an example of the	7
type of expert testimony by a law enforcement officer that is admissible in a drug	8
trafficking case. See Rael-Gallegos, 2013-NMCA-092, ¶¶ 30, 32. The testimony	9
quoted from both Melton and Yates informs the jury of the amounts of narcotics	10
generally possessed by the typical user versus the amount generally possessed by a	11
typical seller.5 Rael-Gallegos then gives as the example of impermissible expert	12
testimony the expert’s opinion in State v. Ogg, 243 N.W.2d 620 (Iowa 1976), that	13
“the amount . . . in the defendant’s possession exceeded what one might possess for	14
personal use.” Rael-Gallegos, 2013-NMCA-092, ¶ 31. This testimony by a law	15
5Rael-Gallegos states that “an officer may testify as an expert and offer [their]
opinion as to a trafficking amount versus personal use amount of narcotics,” 2013-
NMCA-092, ¶ 30, and supports that statement with the following two examples of
permissible expert testimony: (1) “‘[A] typical user carries one or two pieces of crack
cocaine, while a typical seller carries anywhere from one to fifty pieces.’” Id.
(quoting Melton, 824 So.2d at 950); and (2) “‘A qualified expert may offer opinion
testimony regarding [their] knowledge of the amount of crack cocaine one would
generally 	possess 	for 	personal 	use 	or 	the 	amount 	which 	might 	evidence
distribution.’” Id. (quoting Yates, 699 S.E.2d at 44).

18
enforcement officer is quoted as an example of expert testimony that encroaches on	1
the role of the jury in weighing the evidence and determining guilt or innocence.	2
{32} 	The special concurrence disagrees that Rael-Gallegos draws the line between	3
permissible and impermissible law enforcement officer expert testimony by limiting	4
permissible expert testimony to general or typical behaviors of drug traffickers, and	5
prohibiting expert opinion testimony based on the evidence against the defendant in	6
the case being tried. The author believes that the close reading of Rael-Gallegos just	7
discussed supports this holding. Moreover, the author strongly disagrees that such	8
an important matter turns on whether the law enforcement officer testifies that the	9
evidence in the pending case “is trafficking,” “indicates an intent to traffic,” or “is	10
indicative of trafficking,” phrases that the special concurrence agrees cross the line	11
into telling the jury how to decide the case, versus the law enforcement officer	12
testifying that the evidence “is consistent with trafficking,” which the concurrence	13
concludes is admissible expert testimony. In the author’s opinion, all of these phrases	14
communicate to the jury that the law enforcement officer has weighed the evidence	15
in the case and concluded that the defendant is guilty of trafficking. Such an expert	16
opinion, in the context of a drug trafficking case, has no purpose apart from advising	17
the jury how law enforcement would decide the case and by implication, how they	18
should decide. The distinction between commenting directly on the state’s evidence	19
in the case against a defendant and educating the jury about what evidence is	20

19
typically associated with drug trafficking, on the other hand, is a straightforward	1
distinction that is supported, as explained in the next section of this opinion, by our	2
rules of evidence and precedent construing those rules.	3
B. 	Our Rules Governing the Admission of Expert Testimony Support the	4
Holding of Rael-Gallegos	5
{33} 	On appeal, the State and Defendant both rely on precedent in addition to Rael-	6
Gallegos that construes Rule 11-704 in other contexts besides prosecutions for drug	7
trafficking. The State argues that our precedent construing Rule 11-704 supports its	8
reading of Rael-Gallegos to broadly allow expert testimony concerning the ultimate	9
issue in a case, subject only to the requirement that the expert not “tell the jury what	10
to do nor . . . imply that the question of guilt or innocence had been predetermined.”	11
Defendant finds support in Rule 11-704 and the precedent construing that rule for	12
limiting expert testimony in drug trafficking cases to typical trafficking versus	13
personal use practices, the line Defendant argues, and the author agrees, is drawn by	14
Rael-Gallegos.	15
{34} 	Assuming that Rael-Gallegos does not fully resolve the question raised, we	16
proceed to address the rules governing the admission of expert testimony and our	17
Supreme Court precedent construing those rules. The majority agrees that the	18
testimony at issue in this case is impermissible under our rules governing expert	19
testimony, but again disagrees about where the line must be drawn in a drug	20
trafficking case under this body of law.	21

20
C. 	Rule 11-704	1
{35} 	We agree with the parties that Rule 11-704 is of importance in determining	2
the outer limits of expert testimony. Rule 11-704 provides: “An opinion is not	3
objectionable just because it embraces an ultimate issue.” (Emphasis added.) Our	4
Supreme Court has construed Rule 11-704 to allow the admission of expert	5
testimony “even if it touches upon an ultimate issue to be decided by the trier of	6
fact.” State v. Alberico, 1993-NMSC-047, ¶ 84, 116 N.M. 156, 861 P.2d 192. The	7
Court cautioned, however, that Rule 11-704 “was not intended to permit experts to	8
tell the jury what result to reach.” Alberico, 1993-NMSC-047, ¶ 86 (internal	9
quotation marks and citation omitted).	10
{36} 	Our Supreme Court has distinguished inadmissible expert testimony that	11
“tell[s] the jury what result to reach” from admissible expert testimony that touches	12
on an ultimate issue by looking to whether the expert testimony is necessary to help	13
the jury decide the case, one of the foundational requirements found in Rule 11-702	14
for the admission of expert testimony. Alberico, 1993-NMSC-047, ¶ 86. In its	15
opinion in State v. Lopez, 1973-NMSC-041, ¶ 28, 84 N.M. 805, 508 P.2d 1292, our	16
Supreme Court stated that “‘if the matter in dispute and to be decided involves causes	17
and effects which are not within the knowledge or comprehension of the lay trier,	18
expert testimony is admissible as an aid to the decisional process.’” (quoting Padgett	19
v. Buxton-Smith Mercantile Co., 262 F.2d 39, 41 (10th Cir. 1958)). The Court further	20

21
explained that “[i]t is only when the so-called expert testimony involves causes and	1
effects readily within the knowledge or comprehension of the fact triers that we have	2
ruled it out as an usurpation of the judicial function.” Lopez, 1973-NMSC-041, ¶ 28	3
(internal quotation marks and citation omitted).	4
{37} 	In its opinion in Alberico, the Court again explained that where the jury is	5
competent to independently draw a conclusion without additional expert testimony,	6
allowing an expert to tell the jury how the expert would weigh the evidence is	7
“nothing more than advice to jurors on how to decide the case.” 1993-NMSC-047,	8
¶ 86. “Such testimony was not legitimized by Rule [11-]704, and is not admissible	9
under Rule [11-]702.” Alberico, 1993-NMSC-047, ¶ 86.	10
{38} 	We do not question the need for the expert testimony of a law enforcement	11
officer with special knowledge of the patterns and practices associated with drug use	12
and drug trafficking to assist the jury. The parties agree that most jurors are not	13
familiar with the customs and practices of either users or traffickers, and do not know	14
the amount of drugs that are typical of trafficking versus use, what items are typically	15
used to package drugs for sale, or any of the many details of the drug trade addressed	16
in Agent Nordquist’s several hours of expert testimony. See State v. Cain, 133 A.3d	17
619, 627-28 (N.J. 2016) (explaining that “[t]he average juror is not knowledgeable	18
about the arcana of drug-distribution schemes,” and expert assistance is required to	19
inform them about how drugs are trafficked and what sorts of items and behavior are	20

22
typical of drug trafficking). Once extensive expert testimony about the items and	1
behavior typical of drug trafficking has been presented to the jury, however, the jury	2
is competent to draw its own conclusion as to the defendant’s guilt of trafficking.	3
See United States v. Boissoneault, 926 F.2d 230, 233 (2d Cir. 1991) (“Once [the	4
agent] had testified as to the likely drug transaction-related significance of each piece	5
of physical evidence, the jury was competent to draw its own conclusion as to [the	6
defendant’s] involvement in the distribution of cocaine.”). Expert testimony that	7
weighs the evidence in the case and tells the jury that a law enforcement officer	8
believes that the evidence shows the defendant “was trafficking” is testimony that,	9
as our Supreme Court held in Alberico, “was not legitimized by Rule [11-]704, and	10
is not admissible under Rule [11-]702.” Alberico, 1993-NMSC-047, ¶ 86.	11
{39} 	Rael-Gallegos’s conclusion that it is error to admit into evidence in a drug	12
trafficking case a law enforcement officer’s opinion that the evidence “shows” or	13
“indicates” or “is” drug trafficking or that the defendant “has an intent” to traffic is	14
entirely consistent with—and indeed compelled by—our precedent construing Rule	15
11-704 together with Rule 11-702.	16
D. 	Application to the Challenged Opinion Testimony	17
{40} 	We begin by noting that Agent Nordquist gave appropriate, admissible expert	18
testimony for several hours, thoroughly educating the jury about the customs and	19
practices typical of narcotics traffickers, providing information about the nature of	20

23
each narcotic, the methods of ingesting each, the amounts typically purchased and	1
held by drug users, how different narcotics are packaged for sale, how and where the	2
business of selling narcotics is conducted and the drugs and money protected, the	3
amounts of money typically held by dealers and the amounts typically paid by	4
purchasers, and the different customs and practices typical of those possessing	5
narcotics solely for their own use. Agent Nordquist testified from his experience that	6
over 50 percent of those trafficking drugs have one or more firearms to protect	7
themselves from theft; that traffickers carry a lot of cash, usually in a variety of	8
denominations; that drugs are often dealt out of motel rooms rather than out of a	9
residence; that a drug user generally buys 3 to 5 grams of methamphetamine; that	10
drugs for trafficking are often weighed on a scale and then packaged in small plastic	11
baggies; that multiple baggies, scales, multi-denominational cash, firearms, and	12
sometimes pipes and syringes for sale are commonly found where there is drug	13
trafficking; and that drug users often turn to trafficking to get money to buy drugs	14
for their personal use. This testimony stayed well within the line drawn by Rael-	15
Gallegos for admissible expert testimony necessary to assist the jury in a trafficking	16
case.	17
{41} 	After the completion of this testimony, the State switched topics, eliciting	18
evidence specific to Defendant’s case based on Agent Nordquist’s participation in	19
the search of Defendant’s motel room. Agent Nordquist was asked to describe the	20

24
search of the motel room in detail and, in the course of that description, to identify	1
each of the photographs taken by the team of narcotics agents during that search.	2
The 	State 	offered 	thirty-one 	exhibits 	through 	Agent 	Nordquist’s 	testimony	3
including, in addition to photographs, a scale, plastic baggies, glass pipes, and the	4
bags of narcotics seized from the motel room.	5
{42} 	This expert testimony also properly assisted the jury by providing the	6
information the expert has learned about narcotics and drug trafficking from years	7
of experience. Agent Nordquist first provided general information about how the	8
business 	of 	trafficking 	narcotics 	is 	typically 	conducted, 	and 	then 	provided	9
information about how each item seized from Defendant’s motel room can be used	10
to prepare the drugs for sale, or alternatively, prepare them to be ingested. When he	11
finished this testimony, the jury was well-prepared to weigh the evidence and come	12
to a verdict. They did not need Officer Nordquist to weigh the evidence for them and	13
tell them that, in his opinion, Defendant “was trafficking.”	14
{43} 	The State, however, continued its questioning of Agent Nordquist, asking	15
whether the physical exhibits introduced into evidence—the scale, baggies, and	16
spoons found in Defendant’s possession—“In your experience, do they indicate	17
preparation for trafficking?” Agent Nordquist answered, “Yes.” At this point, the	18
State asked the district court to qualify Agent Nordquist as “an expert in street-level	19
narcotics trafficking.” As soon as Agent Nordquist was qualified by the district court	20

25
as an expert in street-level trafficking, the State asked him whether, in his expert	1
opinion, the methamphetamine seized from the motel room “was for personal use or	2
distribution?” Agent Nordquist answered, “What I found collectively was evidence	3
of trafficking methamphetamine.” Agent Nordquist also was asked by the State for	4
“his opinion as to the amount of methamphetamine in this case?” He testified that	5
“it was being used for trafficking.”	6
{44} 	We therefore conclude that Agent Norquist’s challenged testimony in this	7
case plainly crossed the line drawn by Rael-Gallegos and by Rules 11-704 and -702	8
between permissible expert testimony necessary to educate the jury about an	9
unfamiliar field, and impermissible testimony telling the jury that the expert believes	10
the defendant is guilty of drug trafficking, and that the jury should find the defendant	11
guilty. It is important here that the guilt or innocence of Defendant was a decision	12
the jury was perfectly capable of making on its own when it retired moments later	13
to deliberate.	14
III. 	Admission of Agent Nordquist’s Opinion on Defendant’s Guilt Was Plain	15
Error	16
{45} 	Because Defendant did not preserve her objection to the testimony challenged	17
on appeal, we review for plain error. Defendant points to extensive precedent	18
acknowledging the highly prejudicial impact on a jury of supposedly “expert”	19
testimony, particularly the testimony of a law enforcement officer, that weighs the	20
evidence for the jury and tells the jury the “right” result. The State argues in response	21

26
that the admission of the challenged testimony did not have a significant impact on	1
the outcome of the trial or significantly invade Defendant’s rights given that	2
Defendant was “caught fairly red-handed in a [motel] room containing narcotics,	3
baggies and a digital scale.” The State claims that any error was corrected by the	4
district court’s instruction to the jury, which we should presume the jury followed,	5
that the jury is “the judges of credibility” and “the sole judges of the facts.” Not	6
persuaded by the State’s arguments, we agree with Defendant that Agent Nordquist’s	7
challenged testimony amounted to plain error under Rule 11-103(E) NMRA.	8
{46} 	Rule 11-103(E) allows this Court to review evidentiary questions that are not	9
preserved under a plain error standard. To find plain error, this Court must be	10
convinced “that admission of the [evidence] constituted an injustice that created	11
grave doubts concerning the validity of the verdict,” State v. Montoya, 2015-NMSC-	12
010, ¶ 46, 345 P.3d 1056 (internal quotation marks and citation omitted); see State	13
v. Chavez, 2024-NMSC-023, ¶ 10, 562 P.3d 521 (“We will not reverse on the basis	14
of plain error unless the error affected a substantial right of the defendant.”	15
(alteration, internal quotation marks, and citation omitted)). The focus of our review	16
is on the error’s effect on the overall fairness and integrity of the proceedings, and	17
on the public perception of the proceeding’s fairness, rather than on whether the	18
defendant’s guilt is so doubtful it would shock the conscience to allow it to stand.	19
Chavez, 2024-NMSC-023, ¶ 11.	20

27
{47} 	We begin our analysis of the impact of Agent Nordquist’s challenged	1
testimony on the fairness and integrity of the proceedings by acknowledging the	2
importance of the distinction in our criminal justice system between possessing	3
drugs for trafficking versus possessing drugs for personal use. Drug trafficking	4
offenses are second-degree felonies, see § 30-31-20(B), which can result in a basic	5
sentence of nine years imprisonment for a first offense, see § 30-31-20(B)(1)	6
(classifying a first offense of trafficking methamphetamine as a second-degree	7
felony); see also § 31-18-15(A) (providing basic sentence of a second-degree	8
felony). The possession of methamphetamine for personal use, in contrast, is	9
classified as a fourth-degree felony, see § 30-31-23(E), punishable by a basic	10
sentence of eighteen months imprisonment, see also § 31-18-15(A) (providing basic	11
sentence of a fourth-degree felony).	12
{48} 	As many courts have concluded, expert testimony by a law enforcement	13
officer claiming to testify about the “specialized knowledge” they possess based on	14
their experience and training “likely will have a profound influence on the	15
deliberations of the jury.” See Cain, 133 A.3d at 427; see also State v. Wheeler, 416	16
So. 2d 78, 82 (La. 1982) (stating that there is increased risk of prejudice to a	17
defendant when “the [expert] witness expressing the opinion is one, such as a police	18
officer, in whom jurors and the public repose great confidence and trust”); State v.	19
Renick, 	A-1-CA-36319, 	memo. 	op. 	¶ 	27 	(N.M. 	Ct. 	App. 	Nov. 	18, 	2019)	20

28
(nonprecedential) (Ives, J., dissenting in part and concurring in part) (noting that the	1
opinion of a law enforcement officer recognized as an expert “[is] likely to have a	2
powerful impact on juries”).	3
{49} 	In its opinion in State v. Ashley, 1997-NMSC-049, ¶¶ 18-19, 124 N.M. 1, 946	4
P.2d 205, our Supreme Court went a step further, not only suggesting that the	5
admission of law enforcement officer testimony giving the officer’s opinion on the	6
defendant’s guilt based on the facts in the case being tried is highly prejudicial and	7
invades the defendant’s rights, but holding that such testimony from a law	8
enforcement officer impermissibly suggested to the jury that guilt had been	9
determined by a judicial officer, a violation of the defendant’s constitutional due	10
process rights.	11
{50} 	In this case, there are at least four factors that add to the tendency of a jury to	12
defer to a law enforcement officer’s expert opinion on the Defendant’s guilt: (1) the	13
law enforcement officer was the sole witness in the case apart from a witness	14
presenting a laboratory report; (2) the same law enforcement officer was both the	15
investigating officer and the State’s expert witness; (3) the State repeatedly elicited	16
Officer Nordquist’s opinion on Defendant’s guilt of trafficking; and (4) the State	17
waited to have the district court certify Agent Nordquist as an expert until just before	18
it repeatedly asked him for his opinion on Defendant’s guilt.	19

29
{51} 	In countering this strong support for a finding that the law enforcement	1
officer’s improper opinion testimony on Defendant’s guilt constituted plain error	2
requiring reversal despite the lack of preservation, the State argues that other	3
evidence strongly supported the verdict. The State’s argument, however, misstates	4
the plain error standard: we look to the overall fairness and integrity of the	5
proceedings and need not find that the verdict “shock[s] the conscience.” See	6
Chavez, 2024-NMSC-023, ¶ 11.	7
{52} 	Finally, we do not agree with the State’s argument that instructing the jury	8
that they are the “sole judge[s] of the facts in this case,” and that they “alone are the	9
judges of the credibility of the witnesses,” cures any error. The jury instructions the	10
State points to are not specific, limiting instructions designed to alert the jury to	11
disregard Agent Nordquist’s stated opinion on Defendant’s guilt. These general	12
instructions, therefore, were unlikely to overcome the jury’s tendency to defer to the	13
expert opinion of a law enforcement officer. We note that the jury was not given UJI	14
14-118 NMRA, the UJI that informs the jury it can disregard expert testimony	15
entirely if it finds it is not credible. Although this instruction is unlikely to have cured	16
the error here, its absence adds to the likelihood the jury was prejudiced by Agent	17
Nordquist’s challenged testimony.	18
{53} 	For the reasons stated, we agree with Defendant that admission of Agent	19
Nordquist’s opinion that the evidence shows “there was trafficking,” along with the	20

30
challenged multiple restatements of that opinion, such as the statement, “What I	1
found collectively was evidence of trafficking methamphetamine.” and that the	2
amount of methamphetamine seized in this case “was used for trafficking” impaired	3
the overall fairness and integrity of the proceedings was plain error.	4
CONCLUSION	5
{54} 	We vacate 	Defendant’s 	conviction 	of possession 	with 	intent 	to 	traffic	6
methamphetamine, and remand for retrial on the trafficking charge.	7
{55} 	IT IS SO ORDERED.	8
_______________________________	9
JANE B. YOHALEM, Judge	10
MEGAN P. DUFFY, Judge, specially concurring	11
GERALD E. BACA, Judge, concurring in special concurrence	12

31
DUFFY, Judge (specially concurring).	1
{56} 	We agree that the officer’s expert testimony in this case crossed the line and	2
amounted to plain error, but cannot agree with the new line proposed in the majority	3
opinion to distinguish admissible versus inadmissible expert testimony. This Court	4
previously established the line in 	Rael-Gallegos, stating that “the distinction	5
between admissible versus inadmissible expert testimony depends on whether the	6
officer testified directly as to the defendant’s intent.” 2013-NMCA-092, ¶ 29. The	7
majority opinion does not engage with this core aspect of Rael-Gallegos’s holding	8
or provide a rationale as to why it is necessary to redraw that line.	9
{57} 	Trafficking 	is 	defined, 	in 	relevant 	part, 	as 	“possession 	with 	intent 	to	10
distribute.” Section 30-31-20(A)(3). Thus, when the officer in this case testified that	11
the evidence “collectively was evidence of trafficking,” and that “there was	12
trafficking of methamphetamine coming out of the room,” the officer testified as to	13
both 	the 	possession 	element 	and 	the 	intent 	element, 	because 	“trafficking”	14
encompasses both propositions. Consequently, the officer’s testimony in this case	15
clearly crossed the line into inadmissible expert testimony under the standard	16
articulated in Rael-Gallegos. Based on both the nature of this testimony and the	17
frequency with which it was repeated throughout the case, we have no trouble	18
concluding that the error was plain.	19

32
{58} 	Given that Rael-Gallegos fully disposes of the issue before us, we are not	1
persuaded that it is necessary to redraw the line in the manner proposed by the	2
majority opinion—that is, to limit admissible expert testimony to general or typical	3
behaviors, and prohibit “expert opinion testimony based on the evidence against the	4
defendant in the case being tried.” Maj. op. ¶ 32. Admittedly, this Court has	5
struggled to parse through the fine distinctions that arise from the myriad ways in	6
which the prosecution elicits testimony about whether the evidence against the	7
defendant “shows,” “indicates,” or “is consistent with” trafficking. See Renick, A-1-	8
CA-36319; State v. Taylor, A-1-CA-33951, mem. op. (N.M. Ct. App. Jan. 11, 2016	9
(nonprecedential); State v. Segura, A-1-CA-28527, mem. op. (N.M. Ct. App. Feb.	10
24, 2011). Nevertheless, while there is no doubt that the majority opinion offers a	11
clear, workable, and easily applicable standard, we have three significant concerns	12
about adopting a rule that prohibits an expert from testifying about the evidence	13
against the defendant.	14
{59} 	First, this bright-line prohibition is facially inconsistent with prior precedents	15
of our Supreme Court that have affirmed the use of similar “consistent with”	16
testimony. 	See, 	e.g., 	Alberico, 	1993-NMSC-047, 	¶ 84 	(holding 	that 	“PTSD	17
testimony may be offered to show that the victim suffers from symptoms that are	18
consistent with sexual abuse”); State v. Lucero, 1993-NMSC-064, ¶ 19, 116 N.M.	19
450, 863 P.2d 1071 (“It is proper, under Alberico, to offer the testimony of a	20

33
qualified psychologist to show that the complainant’s symptoms are consistent with	1
symptoms that have been observed in known victims of sexual abuse because such	2
expert opinion is probative of whether a crime has been committed.”); State v.	3
Consaul, 2014-NMSC-030, ¶ 68, 332 P.3d 850 (“An expert may testify that an	4
observation or an opinion is consistent with an underlying fact, even though that	5
same observation may be consistent with other facts as well. Bloodshot and watery	6
eyes may be consistent with intoxication, but that same observation is consistent	7
with other, noncriminal explanations as well.”); see also Thomas M. Fleming, J.D.,	8
Annotation, Admissibility, in Criminal Prosecution, of Expert Opinion Allegedly	9
Stating Whether Drugs Were Possessed With Intent to Distribute—State Cases, 83	10
A.L.R.4th 629 (1991) (collecting cases as to expert testimony on whether drugs were	11
possessed with intent to distribute).	12
{60} 	Second, the rule announced today creates an obvious tension with a directive	13
this Court has previously given to the State regarding its evidentiary burden in	14
trafficking cases. In State v. Hubbard, 1992-NMCA-014, ¶ 15, 113 N.M. 538, 828	15
P.2d 971, this Court stated that	16
[the d]efendant’s final argument on the sufficiency issue is that this	17
court should adopt a specific test, either indicating what amount of	18
drugs must be found in order to charge an accused with the crime of	19
trafficking, or listing what factors are relevant to the determination.	20
However, contrary to [the] defendant’s assertions, we believe present	21
New Mexico cases adequately provide a test for what constitutes an	22
“intent to transfer” drugs according to New Mexico law. While we are	23
cognizant of [the] defendant’s concern that small amounts of drugs are	24

34
sometimes the basis for trafficking prosecutions, we believe that the	1
“surrounding 	circumstances” 	test 	protects 	against 	the 	concern	2
articulated by [the] defendant. If the amount of an illegal drug found in	3
an accused’s possession is not by itself sufficient to prove inconsistency	4
with personal use, then the state must present testimony that the amount	5
of drugs in the accused’s possession is inconsistent with personal use	6
or that the other items found in possession of the accused, such as drug	7
paraphernalia or significant sums of cash, show that the accused	8
intends to transfer drugs.	9
(Emphasis added.) Thus, when the evidence presents a close call about whether the	10
drugs at issue were for personal use or for trafficking, Hubbard requires the State to	11
present testimony concerning the specific evidence in the defendant’s case, but the	12
majority opinion would prevent an expert from providing such testimony. It’s not	13
apparent how prosecutors and district courts can navigate these competing directives	14
in future prosecutions.	15
{61} 	Finally, while we believe the majority opinion is intended to be limited solely	16
to trafficking cases, the opinion does not clearly express such a limitation. As a	17
result, we worry that confusion will follow as to how this rule applies in other	18
criminal prosecutions where experts are routinely called upon to offer similar	19
ultimate issue opinion testimony.	20
{62} 	For these reasons, we readily concur with the result reached in this case on	21
plain error grounds, but harbor concern about the standard for admissibility	22
announced in the majority opinion. We wish to emphasize that although this standard	23

35
appears in the majority opinion, it does not carry the support of a majority of judges	1
on this panel and is therefore not precedential.	2
_____________________________	3
MEGAN P. DUFFY, Judge	4
I CONCUR:	5
________________________	6
GERALD E. BACA, Judge	7