FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen,
H. Balderas, Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Santa Fe, NM Josephine
H. Ford, Assistant Appellate Defender Albuquerque, NM for
TIMOTHY L. GARCIA, JUDGE.
Defendant-Appellant Robert J. Gallagher (Defendant) appeals
from his convictions of trafficking methamphetamine and
conspiracy to traffic methamphetamine. We previously issued a
notice of proposed summary disposition in which we proposed
to affirm. Defendant has filed a memorandum in opposition.
After due consideration, we remain unpersuaded. We therefore
The pertinent background information was set forth in our
notice of proposed summary disposition. We will avoid undue
repetition here, and focus instead on the content of the
memorandum in opposition.
As an initial matter, we note that the memorandum in
opposition does not challenge our proposed disposition of
Defendant's ineffective assistance of counsel claim. As
such, we do not address that issue any further. See
Taylor v. Van Winkle's IGA Farmer's Mkt.,
1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41
(recognizing that issues raised in a docketing statement, but
not contested in a memorandum in opposition are abandoned).
With respect to Defendant's evidentiary challenge, the
memorandum in opposition disagrees with our proposed holding
that the statement at issue was not offered for the truth of
the matter asserted. [MIO 2] According to the memorandum, an
informant testified that he met Defendant while staying in a
hotel on May 27, 2014. [MIO 3] Defendant rented the room next
door to the informant and offered to sell him some drugs.
[Id.] The next day, the informant went next door to
complete the purchase, but a woman opened the door and told
him that Defendant was not there. [Id.] The
informant told the woman that he wanted to buy drugs from
Defendant, and she told him that she knew someone else who
could sell him drugs. [MIO 4] The woman later asked the
informant to meet her at a store, where she arrived with a
different male companion. [Id.] At this meeting, the
woman told the informant to give her money, and that she
would then go get drugs for him. [Id.] The
memorandum asserts that the State intended to use the latter
statement "as substantive evidence of the crimes charged
against [Defendant.]" [MIO 2] Specifically, Defendant
asserts that the statement was "introduced . . . with
the intent to prove [Defendant's] involvement in a
conspiracy with [the woman] to sell methamphetamine."
[MIO 5] However, we fail to perceive how the statement, taken
for its truth, had any relevance with respect to proving
Defendant's guilt under that charge. As Defendant admits,
the informant testified that the woman told him that she knew
someone other than Defendant who could sell him
drugs. [MIO 4] "[The informant] told her . . . he was
looking for [Defendant] because he was going to sell [the
informant] some drugs. [The women] told [the informant],
'Oh I know somebody, I have a friend.' She said she
would call him on the phone." [Id.] Also,
Defendant does not assert that the State did in fact use the
statement for its truth at any point in the litigation.
Therefore, we hold that the statement at issue was not
hearsay and was, therefore, properly admitted. See State
v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152
P.3d 828 (holding that the appellate court will affirm the
district court's decision if it is right for any reason,
so long as doing so is not unfair to the appellant).
To the extent the statement was inappropriately used for its
truth, in our notice we proposed to hold that the error was
harmless. The memorandum in opposition disagrees with our
proposition. [MIO 6] Defendant admits that the State
presented evidence that Defendant eventually met with the
informant and "handed over" the methamphetamine,
stating that he had "the best product.
"[Id.] However, Defendant argues that the fact
that he was convicted despite his own testimony at trial-that
his involvement was in exchange for drugs for personal use
and not as part of a conspiracy-proves that the jury relied
on the woman's statement in reaching its verdict.
[Id.] We disagree. The jury, of course, was free to
disregard Defendant's version of the facts. See State
v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29
P.3d 1071 (stating that the fact-finder is free to reject the
defendant's version of events). In any event, the
memorandum acknowledges that Defendant ultimately admitted
that "he was there to transfer methamphetamine."
[MIO 8] In addition, Defendant does not dispute that, after
the woman offered to go get drugs for the informant, she
arranged for the informant to meet yet another male who also
asked for the money first. The informant refused again, and
this male testified that he then "facilitat[ed] the
sale" by going to Defendant's house. [MIO 7] The
informant testified that the male came back to the location
where the informant was waiting in the same vehicle as
Defendant, and that Defendant either handed or attempted to
hand methamphetamine to the informant. [MIO 6] In light of
this evidence, we hold that there is no reasonable
probability that the woman's statement that she would go
get drugs for the informant from someone other than Defendant
affected his verdict. See State v. Tollardo,
2012-NMSC-008, ¶ 36, 275 P.3d 110
("[N]on-constitutional error is harmless when there is
no reasonable probability the error affected the
verdict." (internal quotation marks and citation
omitted)). Therefore, we affirm.
Accordingly, for the reasons stated above and in our notice
of proposed summary disposition, we affirm.