March 17, 2009 – State of New Mexico v. Gerardo Ramos Lopez, No. 27,078

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 17, 2009

NO. 27,078

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

GERARDO RAMOS LOPEZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
J.C. Robinson, District Judge

Gary K. King, Attomey General

Andrea Sassa, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Joseph P. Walsh, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Gerardo Ramos Lopez appeals his convictions of possession with
intent to distribute marijuana (over 100 pounds) and conspiracy to commit possession
with intent to distribute marijuana (over 100 pounds). Border Patrol Agents observed
Defendant driving a red Ford Mustang in apparent tandem with a maroon Nissan in
which police ultimately found the drugs. At trial, there was testimony by a narcotic
agent that Defendant owned the Nissan. 	The agent’s testimony was based on her
observations of a registration document in the glove box of the Nissan and a printout
of a registration check through the National Law Enforcement system. On appeal,
Defendant argues that the testimony was inadmissible hearsay and also that the State
failed to introduce the documents relied on by the agent. We conclude that the district
court committed reversible error in admitting the testimony in the absence of the
original documents or an explanation from the State justifying their unavailability.
As a result, we reverse Defendant’s convictions and remand for a new trial.
{2} 	We note that Defendant’s single point on appeal is that the State established an
essential element of the charges on which Defendant was convicted solely on this
inadmissible evidence and, therefore, in its absence the convictions were not
supported by sufficient evidence. The State argues that there was sufficient evidence

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to support the convictions even without the evidence Defendant attacks as being
erroneously admitted. The manner in which the parties have phrased the issues on
appeal, concentrating on sufficiency of the evidence to convict, have the tendency to
lead the reader astray because the determinative issues are whether the court’s
admission of the evidence was erroneous and, if so, whether the error was harmless
and therefore not reversible error.
BACKGROUND
{3} 	Hidalgo County in Southwest New Mexico, where Defendant was arrested, is
a very remote and sparsely populated area close to the Mexico-United States border.
The town of Hachita is about forty-five miles north of the Mexico-United States
border port town of Antelope Wells. To disrupt drug smuggling, United States Border
Patrol Agents in Hachita pay special attention to vehicles traveling to and from the
border. The agents are familiar with the people who live in the area and are familiar
with the vehicles they drive.
{4} 	At trial, law enforcement witnesses testified about a common method of drug
smuggling activity by the use of vehicles to pick up drugs that have been carried
across the border on foot. When drugs enter the United States, it is not uncommon for
the pickup people to use two vehicles in the operation, driving together from a pickup

1 The sufficiency of cause for the stop is not an issue in this case.
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area to a distribution center. This cooperative operation is known in law enforcement
as using “tandem vehicles” and, as testified to in this case, involves one vehicle
serving as a “load vehicle” while the other functions as a decoy or “heat vehicle.”
There are many different factors that law enforcement agents consider in arriving at
a suspicion of a tandem-vehicle drug operation.
{5} 	On the morning of Defendant’s arrest, agents observed a red or maroon Nissan
followed by a red Mustang, traveling close together, both with Arizona license plates,
and with one occupant in each car. The cars appeared to be traveling together, they
were not familiar to the agents, and they headed south toward Antelope Wells. About
two hours later, Agent Michael Leyba observed the same two cars traveling together
northbound, close to Hachita. 	As Agent Leyba turned his patrol unit around, the
Nissan, which was in front, immediately sped off at a high rate of speed, while the
Mustang “calmly drove ahead at . . . normal highway speeds.” Agent Leyba radioed
the circumstances to another agent and stayed in radio contact with regard to the
pursuit of the Nissan, while himself following the Mustang. 	After following the
Mustang for about fifteen minutes, Agent Leyba activated his emergency equipment
and pulled over the Mustang.1 Upon running a radio check, Agent Leyba learned that

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Defendant, who was driving the Mustang, was a resident alien with a prior criminal
charge. Agent Leyba had Defendant follow him to a nearby Border Patrol station.
{6} 	Meanwhile, New Mexico State Police Officer George Lopez had spotted the
Nissan traveling over 100 miles an hour. 	After a pursuit and a failed attempt by
Officer Daniel Calderon to use a spike belt to stop the Nissan, Officer Lopez and
Officer Calderon observed the Nissan parked with the driver door open in front of a
truck stop near Lordsburg, New Mexico. 	The officers found large bundles of
marijuana in the Nissan. The driver of the Nissan was Jesus Arredondo, who was
arrested after being escorted by a truck driver toward Officer Lopez who had begun
to look for the driver of the Nissan. Narcotics Agent Lisa Diaz arrived at the location
of the Nissan and questioned Arredondo. Arredondo told Agent Diaz that the Nissan
did not belong to him. In order to determine who owned the Nissan, Agent Diaz ran
a registration check through Arizona and the National Law Enforcement System and
also looked at the Arizona registration document inside the glove box in the Nissan.
Agent Diaz drove the Nissan to the Border Patrol station, and Arredondo was
apparently transported by another agent to the same location. 	Defendant and
Arredondo were ultimately transported from the Border Patrol station to the State
Police office.

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{7} 	While Defendant was being transported from the State Police office to jail, he
noticed the Nissan parked in front of the office and remarked that the Nissan did not
belong to him. 	With the assistance of the agent who transported Defendant to the
office, Defendant completed and signed a disclaimer of ownership form that requested
name, social security number, birth date, driver’s license, and address.
{8} 	During trial, Agent Diaz was permitted to testify, over objection, that a printout
of the registration check received from dispatch and the registration she saw in the
glove box of the Nissan indicated that Defendant was the owner of the Nissan. The
agent testified that the biographical information on Defendant’s disclaimer was the
same as that included in the printout and the same as that on the registration in the
glove box. The disclaimer was admitted into evidence, but neither the printout nor the
registration documents were introduced in evidence during trial.
DISCUSSION
{9} 	We first address the State’s claims that particular arguments made on appeal
were not properly preserved below. 	We then discuss Defendant’s arguments that
Agent Diaz’s testimony was erroneously admitted, followed by a discussion regarding
the State’s argument that, even without the challenged testimony, there was sufficient
evidence 	to 	support 	Defendant’s 	convictions. 	Finally, 	because 	we 	reverse

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Defendant’s convictions, we conduct a sufficiency-of-the-evidence analysis in order
to determine whether the case should be retried or dismissed.
Preliminary Preservation Issues
{10} 	Before we reach the merits of this case, we discuss two preliminary preservation
issues. 	The first issue is whether an objection was made in the district court by
defense counsel about the admission of testimony as to the contents of both the
printout and the registration document found in the glove box of the Nissan. The State
asserts that defense counsel only objected to Agent Diaz’s testimony regarding the
registration document in the Nissan and not the registration-check printout that she
received from dispatch. 	We disagree. 	At trial, Agent Diaz testified that she
established ownership of the Nissan based on “a registration from the State of Arizona
inside the car and also a registration check through the State of Arizona, through the
National Law Enforcement system [that] was ran [sic].” When the district court asked
Agent Diaz who owned the car, defense counsel approached the bench and objected
to the admission of the evidence by stating: “I would like some foundation on that.
I haven’t seen these documents that she’s referring to.” The court recessed for lunch
after asking “We don’t have these documents?” 	When the trial resumed, defense
counsel approached and stated:

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Well, what I would ask is maybe if on the record, so that I don’t have to
interrupt [opposing counsel] while [the agent is] testifying, I’d like some
objection 	with 	regard 	to 	the 	evidence 	on 	the 	registration 	and
[Defendant’s] name on the registration of the car, the Nissan and
basically I’d object to the, basically, just because, it’s double hearsay,
it’s hearsay one from the document and two from what was on the
document. What she saw, you know, so I mean, based on hearsay, it was
based on the fact that we don’t have the documents[.]
The court allowed the State to ask Agent Diaz whose name was on the registration that
she found in the glove box, and defense counsel once again objected “with regard to
hearsay and double hearsay that the documents were not disclosed.” We conclude that
the issue was preserved for appeal as to both documents since the district court had
the “opportunity to consider the merits of, or to rule intelligently on, the argument
[the] defendant now puts before us.” State v. Lucero, 104 N.M. 587, 590, 725 P.2d
266, 269 (Ct. App. 1986).
{11} 	The second preservation issue relates to the specificity of defense counsel’s
objection as to which rule of evidence precluded the admission of the testimony about
the contents of the documents. On appeal, Defendant argues in his brief in chief that
admission of the testimony about the contents of the writings, without production of
the actual documents, violated the best-evidence rule. See Rules 11-1002, 11-1004
NMRA. In its answer brief, the State does not object to Defendant’s best-evidence
rule argument on the ground the argument was not preserved. This Court nevertheless

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asked the parties to address this issue in oral argument. 	While defense counsel’s
objection at trial was not as specific as it might have been, he did point out that the
testimony concerned what was on the documents and that the documents were not
disclosed or produced, and he did request foundation. We conclude that this objection
was enough to alert the district court that an objection was being made to testimony
that defense counsel believed required secondary evidence in violation of the best-
evidence rule. See Frost v. Markham, 86 N.M. 261, 265, 522 P.2d 808, 812 (1974)
(holding that an objection demanding production of a document, when no showing of
unavailability of the document had been made, sufficiently informed the court that the
objection was being made as to proof of content in violation of the best-evidence
rule); State v. Guthrie, 2009-NMCA-___, ¶ 13, ___ N.M. ___, ___ P.3d ___ (No.
27,022, filed Jan. 26, 2009) (holding that the defendant preserved a due process
argument despite the fact that his “argument could have been made more artfully”).
We conclude that Defendant properly preserved his objection to evidence based on
violation of the best-evidence rule.
Erroneous Admission of Agent Diaz’s
Testimony About Ownership of the Nissan
{12} 	We review claimed error in the admission of evidence for abuse of discretion.
State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995); Leigh v. Vill. of Los

9
Lunas, 2005-NMCA-025, ¶ 19, 137 N.M. 119, 108 P.3d 525. “An abuse of discretion
occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” Woodward, 121 N.M. at 4, 908 P.2d at 234 (internal
quotation marks and citation omitted). 	“We cannot say the trial court abused its
discretion by its ruling unless we can characterize it as clearly untenable or not
justified by reason.” Id. (internal quotation marks and citation omitted).
{13} 	While Defendant and the State extensively argue the admissibility of testimony
under the hearsay rule as to the content of documents not introduced at trial, the main
and determinative evidentiary issue in this case is not hearsay. Rather, it is the best-
evidence rule. See Rules 11-1002, 11-1004. The best-evidence rule applies when the
contents of a writing are at issue but the original document is not introduced into
evidence. See Rule 11-004; see also Sun Vineyards, Inc. v. Luna County Wine Dev.
Corp., 107 N.M. 524, 528, 760 P.2d 1290, 1294 (1988) (stating that a document is the
best evidence of its contents).
{14} 	Pursuant to Rule 11-004, the State was required to either produce the original
writings or explain why they were unavailable. See Rule 11-1004 (providing that the
original is not required and other evidence of the contents of a writing is admissible
if the original was lost or destroyed, not obtainable, in possession of opponent, or not

10
closely related to a controlling issue); Palatine Ins. Co. v. Santa Fe Mercantile Co.,
13 N.M. 241, 253, 82 P. 363, 364 (1905) (holding that the evidence of the contents of
a printed offer of reward for apprehension and conviction of the person who set a fire
was inadmissible in the absence of any showing as to why the original offer was not
produced); Phillips v. State, 597 P.2d 456, 462 (Wyo. 1979) (holding that error was
committed in allowing a witness to testify as to the contents of a teletyped report of
registration without introduction into evidence of the message itself). 	Here, the
documents referred to by Agent Diaz were not introduced at trial, and the State
provided no explanation as to availability of the documents. Accordingly, based on
the best-evidence rule, the district court erred in admitting the testimony of Agent
Diaz with regard to these documents.
{15} 	Defendant contends that without the erroneously admitted evidence, the
remaining evidence was insufficient to convict Defendant. Defendant’s approach is
to argue that the case must be reversed because without Agent Diaz’s testimony
relating to ownership there was insufficient evidence to establish the essential
elements of the crimes. We reject this approach as a basis for reversal of Defendant’s
convictions. 	Assuming that the evidence was erroneously admitted, the issue for
reversal is whether the admission of the evidence of ownership was prejudicial

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because it likely contributed to the jury’s verdict or, instead, was not prejudicial
because it constituted harmless error. See State v. Stampley, 1999-NMSC-027, ¶ 38,
127 N.M. 426, 982 P.2d 477 (placing the burden on the complaining party to
demonstrate that the erroneous admission or exclusion of evidence was prejudicial in
order to obtain a reversal of the lower court’s evidentiary ruling). Nevertheless, the
State expends most of its answer brief resources responding to Defendant’s
sufficiency argument as though this were a substantial evidence case. As we indicate
later in this opinion, we discuss the State’s position on sufficiency, but treat it in
essence as a harmless error argument. We note that nowhere in the State’s brief does
the State respond to Defendant’s best-evidence rule argument. We further note that
in addressing whether the agent’s testimony was inadmissible hearsay, the State
makes a limited argument that the testimony regarding the registration documents, if
inadmissible, nevertheless “constituted harmless error because the evidence was
cumulative,” in that it “merely duplicated the evidence obtained from the National
Law Enforcement system check” along with other evidence. Although not specifically
argued in its answer brief, in oral argument the State took the position that if the
testimony about the contents of the two documents was erroneously admitted, the
admission was harmless because the remaining evidence of guilt was overwhelming.

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The State’s Sufficiency-of-Evidence Response
{16} 	In its answer brief, the State argues that the tandem-vehicle evidence alone,
without the testimony of Agent Diaz as to the ownership of the Nissan, sufficiently
established that Defendant shared Arredondo’s intent of smuggling the marijuana for
distribution and that Defendant was in constructive possession of the drugs. The State
further argues that Defendant manifested his intent by actively participating as a scout
vehicle for Arredondo, which would support a conviction of possession under an
accessory theory.
{17} 	To support its position, the State relies heavily on a substantial evidence case
in the Tenth Circuit, United States v. Isaac-Sigala, 448 F.3d 1206 (10th Cir. 2006),
to show that evidence of tandem-vehicle activity can be sufficient to convict. Isaac-
Sigala is not applicable because it is based entirely on whether substantial evidence
supported the verdict and not on whether evidence was erroneously admitted resulting
in reversible error. 	Id. at 1208. Furthermore, the evidence in Isaac-Sigala clearly
established that the driver of the scout van knew the contents of the load van, the
evidence had nothing to do with the defendant as the owner of either vehicle, and the
defendant conceded his connection with the load van. Id. at 1211, 1212. Despite the
confusing approach taken by Defendant in his brief in chief by arguing sufficiency of

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the evidence, the State’s approach is not useful and does not constitute a persuasive
response to whether the district court in the present case committed reversible error.
We do not fully discount the State’s argument, however, because we construe it to
assert that the error, if any, in admitting Agent Diaz’s testimony was harmless because
other evidence presented was sufficient to support findings that Defendant was in
constructive possession of the drugs as an accessory and that Defendant conspired to
possess the drugs.
{18} 	“For an error to be deemed harmless, there must be: (1) substantial evidence
to support the conviction without reference to the improperly admitted evidence,
(2) such a disproportionate volume of permissible evidence that, in comparison, the
amount of improper evidence will appear so minuscule that it could not have
contributed to the conviction, and (3) no substantial conflicting evidence to discredit
the State’s testimony.” 	State v. Duffy, 1998-NMSC-014, ¶ 38, 126 N.M. 132, 967
P.2d 807 (internal quotation marks and citation omitted).
{19} 	Defendant was convicted of possession with intent to distribute marijuana (over
100 pounds) and conspiracy to distribute marijuana (over 100 pounds). To obtain a
conviction for possession of marijuana, the State had to establish beyond a reasonable
doubt that: (1) Defendant had marijuana in his possession, (2) Defendant knew it was

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marijuana, (3) Defendant intended to transfer the marijuana to another, and (4) this
happened in New Mexico on or about September 30, 2004. 	UJI 14-3104 NMRA.
Proof of possession of illegal drugs may be established by circumstantial as well as
direct evidence. State v. Barber, 2004-NMSC-019, ¶ 27, 135 N.M. 621, 92 P.3d 633.
Possession may be actual or constructive. State v. Brietag, 108 N.M. 368, 370, 772
P.2d 898, 900 (Ct. App. 1989).
{20} 	There were no drugs found in the Mustang that Defendant was driving.
However, as indicated by the State, the jury may have convicted him for possession
under a constructive-possession theory or accessory liability. 	To be convicted of
constructive possession, exercise of control over the drugs is an essential element
because neither a person’s presence in the vicinity of nor knowledge of the existence
or location of the drugs is, by itself, possession. 	The district court gave the jury a
constructive-possession jury instruction that states:
A person is in possession of Marijuana when he knows it is on his
person or in his presence, and he exercises control over it.
Even if the substance is not in his physical presence, he is in
possession if he knows where it is, and he exercises control over it.
Two or more people can have possession of a substance at the
same time.
A person’s presence in the vicinity of the substance or his

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knowledge of the existence or the location of the substance, is not, by
itself, possession.
UJI 14-3130 NMRA.
{21} 	Ownership was a very important consideration at trial. 	The district court
specifically asked Agent Diaz, “And who was the owner of that car?” The State relied
on the testimony about ownership of the Nissan to show that Defendant had control
over the marijuana. During closing argument and precisely in the context of control
over the marijuana, the prosecutor told the jury that “[W]hat we have presented to you
today is full proof that here is a defendant before us today who is in possession in that
he has exercised control . . . . The automobile [is] in his name . . . . So, [he is] in
physical control.” 	The prosecutor also used the ownership evidence to argue that
Defendant’s written disclaimer of ownership was not credible. 	In describing the
activity of Arredondo and Defendant, the prosecutor referred to “Arredondo, driving
a car, registered to [Defendant],” and then, a few moments later, in reference to “all
of the evidence in this particular case,” the prosecutor singled out “the way it
happened, . . . the methods of travel, . . . the jointness of it, Mr. Arredondo driving a
car, registered to [Defendant].” In rebuttal argument, the prosecutor referred to “that
registration document.” It is apparent, therefore, that the State relied on the testimony
pertaining to the ownership of the Nissan in order to establish control, an essential

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element of the crime under a constructive-possession theory.
{22} 	The jury was also instructed under a theory of aiding or abetting/accessory to
crime liability and conspiracy to possess marijuana. For a possession with intent to
distribute conviction under an aiding or abetting theory, the State had to establish
that: 	(1) Defendant intended that the crime be committed, and (2) the crime was
committed. UJI 14-2822 NMRA. “[A]n accessory must share the criminal intent of
the principal[, which] can be inferred from behavior which encourages the act or
which informs the confederates that the person approves of the crime after the crime
has been committed.” 	State v. Carrasco, 1997-NMSC-047, ¶ 7, 124 N.M. 64, 946
P.2d 1075 (citation omitted); State v. Brenn, 2005-NMCA-121, ¶ 24, 138 N.M. 451,
121 P.3d 1050 (“Intent is usually established by circumstantial evidence.”). 	Our
statute defines conspiracy as “knowingly combining with another for the purpose of
committing a felony.” NMSA 1978, § 30-28-2(A) (1979). To obtain a conviction of
conspiracy, the State had to establish beyond a reasonable doubt that: (1) Defendant
and another person by words or acts agreed together to commit possession of
marijuana with intent to distribute, and (2) Defendant and the other person intended
to commit possession of marijuana with intent to distribute. UJI 14-2810 NMRA.
“[C]ircumstantial evidence can be used to prove a conspiracy.” State v. Hernandez,

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104 N.M. 268, 277-78, 720 P.2d 303, 312-13 (Ct. App. 1986).
{23} 	In addition to the prosecutor’s arguments set out earlier in this opinion, the
prosecutor described the joint plan as “going down to the isolated area, . . . operating
in tandem, operating . . . [a] decoy car to deflect focus of the law enforcement officers
on the load car.” The prosecutor goes on to state that “it’s early in the morning before
the Border Patrol station opens. . . . There’s two cars going down there. . . . [O]ne
of the drivers, Arredondo, driving a car, registered to this [D]efendant.” To further
the joint-plan argument, the prosecutor described how “the one car really jumps and
runs when . . . Agent Leyba . . . makes [a] U turn [to] get[] behind them,” and
Defendant continues slowly in the Mustang doing just “what he’s supposed to do,”
that is distract law enforcement while the Nissan speeds away. The prosecutor argued
that the circumstances showed intent and that Defendant helped and encouraged the
commission of the crime and that Defendant conspired with Arredondo to “work
together and they by their actions . . . showed that there was an agreement to commit
this possession of marijuana with intent to distribute.” 	The State claimed that
Defendant manifested his intent by actively participating as a scout vehicle for
Arredondo which would support a conviction of possession under an accessory theory.
On appeal, the State also argues that the concerted action of the two drivers supports

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Defendant’s conspiracy conviction.
{24} 	Without the testimony pertaining to the ownership of the Nissan, the only
evidence remaining was the tandem-vehicle activity testimony. 	However, that
evidence alone in this case paled in the face of evidence of the connection to the crime
provided by the registration document in the Nissan and the registration-check
printout. 	See United States v. McMahon, 562 F.2d 1192, 1195-96 (10th Cir. 1977)
(holding evidence of “lead car-load car” modus operandi was insufficient to support
smuggling of aliens and conspiracy convictions when the defendant’s vehicle was in
the vicinity of load vehicle, the vehicles had been on a road that avoided the
checkpoint, the vehicles were equipped with CB radios, the drivers were brothers-in-
law, and the defendant’s vehicle had turned around and was traveling south on I-25
after the load vehicle was detained, because no incriminating contact with the
smugglers was shown and the circumstantial evidence created mere suspicion or
insinuation of guilt, which was not enough for a conviction).
{25} 	We conclude that the testimony of Agent Diaz with regard to the registration
documents was erroneously admitted, and it was significant, if not compelling,
evidence of Defendant’s connection to the crime; whereas the tandem-vehicle
evidence alone was barely, if at all, sufficient to support Defendant’s convictions.

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Therefore, under the Duffy harmless-error analysis, we hold that the tandem-vehicle
evidence was not of such a disproportionate volume as to render the inadmissible
evidence “so minuscule that it could not have contributed to the conviction[s].” Duffy,
1998-NMSC-014, ¶ 38 (internal quotation marks and citation omitted). Therefore, we
reject the State’s sufficiency-of-evidence and apparent harmless-error arguments.
{26} 	Establishing the ownership of the Nissan was necessary in this case to support
Defendant’s convictions of possession under either a constructive-possession or an
accessory-liability theory and to establish conspiracy to possess. We hold that the
admission of the testimony of Agent Diaz with regard to the registration documents,
without submission of the supporting documents or an explanation regarding
unavailability 	of 	those 	documents, 	constituted 	reversible 	error. 	We 	reverse
Defendant’s convictions for possession with intent to distribute and conspiracy to
possess with intent to distribute.
Retrial or Dismissal
{27} 	Defendant requests that we reverse his convictions and dismiss the case against
him with prejudice or, in the alternative, grant him a new trial. When determining
whether a case should result in dismissal or retrial, we must determine whether the
evidence was sufficient to support the convictions and in doing so, we consider all the

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evidence, including evidence that was improperly admitted. State v. Post, 109 N.M.
177, 181, 783 P.2d 487, 491 (Ct. App. 1989). As previously discussed, ownership of
the Nissan could provide a sufficient link between Defendant and the drugs and could
establish the elements necessary for Defendant’s convictions of possession with intent
to distribute and conspiracy. 	When evidence of ownership of the Nissan that was
improperly admitted is considered, it is apparent that there was sufficient evidence to
connect Defendant to the Nissan, in which the drugs were being transported, and
therefore sufficient evidence to support convictions for possession of marijuana with
intent to distribute and conspiracy to possess with intent to distribute. We conclude
that retrial is the appropriate remedy.
CONCLUSION
{28} 	We reverse Defendant’s convictions for possession with intent to distribute and
conspiracy to possess with intent to distribute and remand for a new trial.
{29} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:

JAMES J. WECHSLER, Judge

RODERICK T. KENNEDY, J udge

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