STATE OF NEW MEXICO v. MONIQUE MARTINEZ (2026)

OPINION

{1} Defendant Monique Martinez appeals her conviction for trafficking by possession with intent to distribute methamphetamine, contrary to NMSA 1978, Section 30-31-20(A)(3)(c) (2006). Defendant challenges the admission of a law enforcement officer's expert opinion that the evidence in Defendant's case, “collectively, was evidence of trafficking.” Because the objections raised on appeal were not preserved in the district court, we review the admission of this and other similar testimony by the law enforcement officer in this case for plain error. The majority agrees that the officer's expert testimony in this case, stating his opinion that “[t]here was trafficking of methamphetamine” based on the evidence found in the motel room, was plain error. We reverse on that basis.

{2} The three-judge panel of this Court, however, does not agree on where the line should be drawn between permissible expert opinion testimony by a law enforcement officer in a drug trafficking case that educates the jury and impermissible testimony encroaching on the jury's role in deciding guilt or innocence. The author concludes that New Mexico law requires that law enforcement officer expert testimony in a trafficking case be limited to testimony that educates the jury about the distinctions between the typical customs and practices of those who use narcotics and those who traffic narcotics, and that an expert opinion that goes further and gives the officer's opinion based on the evidence introduced in the defendant's case, advising the jury that, in the officer's opinion, that certain evidence listed by the officer in his testimony “was for trafficking” or “indicates or is indicative of trafficking,” or “is consistent with trafficking” has no purpose other than to tell the jury how to decide the case, and is therefore impermissible.

{3} The special concurrence disagrees with the author's conclusion that New Mexico law prohibits expert opinion testimony that the evidence in front of the jury “is trafficking” in the expert's opinion, regardless of how the officer's opinion is phrased. The special concurrence concludes that a law enforcement officer is permitted to testify that the evidence in the case is consistent with trafficking, without encroaching impermissibly on the exclusive function of the jury in determining a defendant's guilt or innocence, so long as the expert does not say that the defendant is trafficking or that the evidence indicates trafficking or the evidence shows the defendant's intent to traffic.

{4} Because the majority agrees that under our plain error standard, the admission of the expert testimony in this case—repeated testimony that, in the expert's opinion, the evidence shows Defendant was trafficking—significantly impaired Defendant's rights and put the validity of the verdict in doubt, we reverse and remand for a new trial.

BACKGROUND

{5} Defendant was convicted by a jury of one count of trafficking by possession with intent to distribute methamphetamine, contrary to Section 30-31-20(A)(3)(c); possession of a controlled substance (heroin), contrary to NMSA 1978, Section 30-31-23(A), (E) (2011, amended 2021); and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A), (C) (2001, amended 2022). Defendant was separately tried and convicted as a felon in possession of a firearm, contrary to NMSA 1978, Section 30-7-16(A)(1) (2019, amended 2022). All of the charges were based on a search on April 1, 2019, pursuant to a warrant, of a motel room in Alamogordo, New Mexico, occupied by Defendant and her boyfriend.¹ Defendant appeals solely from her conviction for trafficking.

{6} Apart from the testimony of a laboratory technician who testified that the substances recovered from the search were narcotics, the State's sole witness at trial was law enforcement officer Agent Brad Nordquist. The prosecutor first questioned Agent Nordquist about his training and experience in the enforcement of narcotics laws. Agent Nordquist testified to his work over the previous five years on the Otero County Sheriff's Narcotics Task Force and his experience as an undercover confidential informant on narcotics trafficking. The State did not ask the district court to qualify Agent Nordquist as an expert at the conclusion of the State's evidence on his qualifications and the defense did not object to his not being qualified or ask for an opportunity to voir dire.

{7} The prosecutor next proceeded to question Agent Nordquist for approximately an hour about his specialized knowledge, based on his experience and training, concerning: (1) the appearance of methamphetamine and heroin; (2) how methamphetamine and heroin are generally packaged for sale versus for personal use; (3) the quantities of methamphetamine commonly offered for sale on the street; (4) the amount generally purchased for personal use by the average street buyer and the cost of that amount; (5) how methamphetamine and heroin are typically ingested; (6) how a scale is used by drug traffickers to weigh small ready-to-sell quantities of narcotics, which are then transferred to small plastic baggies for sale; (7) the percent of drug traffickers, in Agent Nordquist's experience, who have guns; (8) the reasons traffickers generally have one or more guns; (9) why it is common for drug traffickers to deal drugs out of a motel rather than a residence; (10) that the quantities of methamphetamine most people possess for personal use range from 3 to 5 grams; (11) that in 2019 a gram of methamphetamine on the street cost approximately fifty to sixty dollars, and most addicts could generally afford to buy no more than 3 to 5 grams for personal use; and (12) that “a big indicator of trafficking or distribution” as opposed to possession for personal use, is possession of multiple packages, small plastic baggies, scales, different denominations of cash, and one or more firearms.

{8} After eliciting this testimony about drug trafficking, the amount of drugs generally possessed by traffickers versus drug users, the items generally used to traffic drugs versus the items used to ingest drugs, and the purpose of each type of item identified as commonly used by drug traffickers based on Agent Nordquist's experience and training as a law enforcement officer specializing in narcotics,² the State next questioned Agent Nordquist about the April 1, 2019, search of the motel room occupied by Defendant and her boyfriend, a search Agent Nordquist conducted along with other officers.

{9} Agent Nordquist explained that the only person identified by name in the warrant was Defendant's boyfriend, but that the affidavit and warrant indicated that an unidentified woman was likely to be present as well. Agent Nordquist testified that when he entered the motel room with the other agents after using a battering ram to open the door, Defendant was standing between the two beds in the room, and Defendant's boyfriend was in the bathroom. Agent Nordquist went into the bathroom where he described seeing several items of drug paraphernalia on the lip of the bathtub, as well as several baggies in the toilet that were filled with a white crystalline substance, which Defendant's boyfriend was trying to flush down the toilet. Agent Nordquist fished two baggies out of the toilet. Laboratory analysis later identified the white crystalline substance inside the baggies as methamphetamine. Both the drug-filled baggies and the objects on the bathtub were introduced into evidence as exhibits at trial.

{10} Agent Nordquist described the search of the motel room item by item, with the prosecutor questioning him to lay the foundation for the admission of each of the thirty-one exhibits offered by the State. Most of the exhibits were photographs taken during the search that illustrated Agent Nordquist's description of the search. The photographs included close-up views of open furniture drawers and of an open suitcase searched by the agents. Agent Nordquist testified that the agents found women's clothes in the suitcase along with a .25 caliber firearm in an inner sleeve, and introduced photographs of these items. In a medicine bag associated with the suitcase, agents found and photographed a glass pipe wrapped in a pink handkerchief. Other items found in the motel room during the search included a digital scale, a box of plastic baggies, and a jeweler's bag, each, with narcotic residue on them. The State introduced these objects into evidence. Exhibits 14 and 15 are photographs of a used glass smoking pipe found toward the western edge of the desk area in the motel room, with a woman's makeup bag or carrying case nearby. There was a purse on the desk that contained an identification card belonging to Defendant, two tied-off plastic baggies with drug residue on them, and a scoop that Agent Nordquist described as usable either for separation of narcotics for sale or for personal consumption of narcotics. Law enforcement found a syringe in the bathroom that had been used to inject heroin, according to Agent Nordquist.

{11} On the second bed in the room, Agent Nordquist located a wallet belonging to Defendant's boyfriend, which contained twenty-dollar bills. Agent Nordquist estimated that the confiscated drugs retrieved from the toilet weighed approximately 14 grams in their wet state. Finally, Agent Nordquist was questioned by the prosecutor as to whether, in his training and experience, the digital scale with residue, the baggies with residue, and the jeweler's bag with residue, “indicate[d] preparation for trafficking.” Agent Nordquist responded that in his expert opinion “they are an indication of trafficking narcotics.”

{12} At the conclusion of this portion of his testimony, the State proffered Agent Nordquist as an expert in “street level narcotics trafficking” and asked the district court to allow Agent Nordquist “to render an opinion as to trafficking.” Defendant's counsel asked to voir dire Agent Nordquist “on his expertise.” During voir dire, Defendant asked about Agent Nordquist's educational background, his training and experience as a police officer and narcotics agent, his current position, his previous experience with testifying in court, and expressed skepticism in his cross-examination questions about whether Agent Nordquist's expertise extended to the type of drugs and the manner in which drugs were trafficked in April 2019 when he participated in the search of the motel room. Agent Nordquist denied that much had changed in the four years between 2019 and his testimony in court. When defense counsel concluded the voir dire, counsel stated that he was renewing his objection. The district court asked, “To [Agent Nordquist's] testimony today?” Defense counsel stated, “Yes.”³ The court then granted the State's motion, qualifying Agent Nordquist as an expert “in street level narcotics trafficking.”

{13} The State's examination of Agent Nordquist then continued with the following questions and responses by Agent Nordquist:

State: Do you have an opinion based on your experience and training, as to what the evidence in this case indicates with regard to the methamphetamine that was located?

Agent Nordquist: There was trafficking of methamphetamine coming out of the [motel] room.

State: Specifically with regard to the evidence that was found?

Agent Nordquist: I may not be understanding your questioning.

State: You phrase it, “there was trafficking.” I'm referring to the evidence that was there at the time that you located it. Based on the evidence that was found [inaudible] whether the drugs that were found, the methamphetamine specifically, was for personal use or for distribution?

Agent Nordquist: What I found collectively was evidence of trafficking methamphetamine.

State: Can you just perhaps make a list of the items that indicate to you that it was for trafficking?

Agent Nordquist: The amount of methamphetamine, the manner and ways in which it was bagged, the plastic baggies, the digital scale with the white crystalline residue and the currency located were to me all indicators that it was trafficking of methamphetamine.

State: And what role if any did the firearm play in your analysis?

Agent Nordquist: We call it “tools of the trade” for protection against theft and compensation of the product and/or currency.

On redirect, the State again asked Agent Nordquist:

State: Taking into account all the evidence in the case, not the isolated evidence that was in her purse, what's your opinion as to the amount of methamphetamine in this case?

Agent Nordquist: It was being used for trafficking.

{14} The only other witness at trial was a laboratory technician who testified that the substances recovered from the motel room were methamphetamine and heroin. According to the technician, the plastic baggies of methamphetamine retrieved from the toilet weighed, when dry, around 0.424 grams, 7.149 grams, 0.507 grams, and 0.295 grams or in total about 8 grams. The amounts found in Defendant's purse were 0.516 grams of methamphetamine and 0.076 grams of heroin.

{15} In closing argument, the State reminded the jury that Agent Nordquist's testimony was reliable because he was an “expert in street-level narcotics trafficking.” The jury convicted Defendant of trafficking. Defendant appealed.

DISCUSSION

{16} This appeal asks this Court to answer the following questions: What are the bounds of a law enforcement officer's expert testimony in a drug trafficking case? and did Agent Nordquist's expert opinion, that based on the evidence found in the motel room, the methamphetamine, “was for trafficking” exceed those bounds?

{17} Before we address these questions, however, we first need to resolve the dispute between the parties as to whether Defendant preserved the issue raised on appeal for our review. If not preserved, we review an evidentiary objection for plain error. See State v. Contreras, 1995-NMSC-056, ¶ 23, 120 N.M. 486, 903 P.2d 228 (noting that appellate courts review unpreserved evidentiary objections for plain error). Finding that Defendant did not preserve the question she now raises on appeal, we conclude that our review is for plain error.

{18} The starting point for our plain error analysis is to determine whether there was error in the admission of the evidence. See State v. Gwynne, 2018-NMCA-033, ¶ 27, 417 P.3d 1157 (noting that the first criteria for plain error is that “there must be ․ error”). We therefore next address whether the admission of Agent Nordquist's opinion that the methamphetamine found in Defendant's possession “was for trafficking,” that the methamphetamine found in Defendant's possession “was being used for trafficking,” that “collectively, [the evidence] was trafficking,” and that “[t]he amount of methamphetamine, the manner and ways in which it was bagged, the plastic baggies, the digital scale with the white crystalline residue and the currency located were to me all indicators that it was trafficking of methamphetamine,” repeated multiple times to the jury, improperly communicate to the jury Agent Nordquist's opinion that Defendant was guilty of trafficking and that the jury should find her guilty.

{19} Concluding that the admission of Agent Nordquist's opinion on Defendant's guilt is inconsistent with both this Court's opinion in State v. Rael-Gallegos, 2013-NMCA-092, 308 P.3d 1016 and with our Supreme Court precedent limiting the admission of expert testimony on an ultimate issue under Rule 11-704 NMRA, we next determine whether the improper admission of Agent Nordquist's expert testimony meets the high standard required to reverse for “plain error.” Concluding that this error affected substantial rights of the accused and raised doubt about the integrity of the proceedings, we reverse and remand for retrial with direction to limit law enforcement expert testimony asking the law enforcement officer to give their opinion as to whether Defendant was guilty of drug trafficking.

I. The Arguments Made on Appeal Were Not Preserved in the District Court for Review on Appeal

{20} “To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked.” Rule 12-321(A) NMRA. “The preservation rule provides the lower court an opportunity to correct any mistake, provides the opposing party a fair opportunity to show why the court should rule in its favor, and creates a record from which this Court may make informed decisions.” Yurcic v. City of Gallup, 2013-NMCA-039, ¶ 35, 298 P.3d 500 (omission, internal quotation marks, and citation omitted).

{21} The State contends that Defendant objected only to Agent Nordquist's qualifications to testify as an expert in narcotics trafficking, and that this objection did not alert the district court or the opposing party to the error she now claims on appeal, and therefore did not satisfy the purposes of preservation.

{22} We agree with the State that Defendant's voir dire of Agent Nordquist, followed by a general objection to his testifying as an expert did not preserve the claim of error Defendant now raises on appeal concerning the admission of expert testimony on the ultimate issue of Defendant's guilt or innocence. Neither the district court nor the State were informed of the nature of Defendant's objection, and therefore, there was no opportunity to respond or to exclude the improper testimony now complained of on appeal. Our review, therefore, is solely for plain error.

{23} As we previously explained, we begin by examining whether the admission of Agent Nordquist's challenged opinion testimony was error.

II. Agent Nordquist's Challenged Testimony Exceeded the Bounds of Permissible Expert Testimony

{24} Defendant argues that the district court erred in admitting Agent Nordquist's testimony that, based on his experience and training as a narcotics agent, the evidence found in Defendant's possession “was trafficking.” Defendant contends that the agent's testimony impermissibly intruded on the jury's exclusive role in deciding guilt or innocence. According to Defendant, the only permissible role for an expert witness in a drug trafficking case is to educate the jury about the typical customs and practices of drug traffickers and of those who possess drugs for their own use. It must then be left to the jury, having been educated by the expert on the practices, methods, and items commonly used to prepare drugs for sale, to weigh both the expert testimony and the other evidence in the case and to decide the guilt or innocence of the defendant, applying common sense and community standards.

{25} The State argues in response that expert testimony on an “ultimate issue” is expressly permitted by Rule 11-704, and that only expert testimony that directly “tell[s] the jury what to do” or “impl[ies] that the question of guilt or innocence ha[s] been predetermined” would “cross the line into the territory of the ultimate jury determination of that defendant's guilt or innocence.” According to the State, because there was no suggestion to the jury “that [it] was mandated to reach a legal conclusion,” the challenged testimony did not encroach impermissibly on the exclusive function of the jury.

{26} Both parties rely on New Mexico Rules of Evidence 11-702 NMRA, and -704, and both parties claim that their position is consistent with this Court's opinion in Rael-Gallegos, 2013-NMCA-092, the only precedential opinion from a New Mexico appellate court defining the line between permissible and impermissible expert testimony by a law enforcement officer in a drug trafficking case. The parties sharply disagree about the meaning of this Court's decision in Rael-Gallegos and about how that decision should be applied to Agent Nordquist's testimony in this case. Because we are bound to follow our own precedent, and because we believe Rael-Gallegos resolves the evidentiary question raised in this case, we address it first before turning to the parties’ arguments based on our rules governing the admission of expert opinion testimony and our precedent guiding our construction of those rules.

A. Rael-Gallegos

{27} In Rael-Gallegos, this Court applied Rules 11-702 and -704, New Mexico precedent construing these rules, and examples taken from other states’ decisions concerning expert evidence in drug trafficking cases specifically to the expert testimony of a law enforcement officers in a drug trafficking case—an issue with which our appellate courts and the courts of other states have struggled. Given the contradictions in the arguments made by the parties and the confusion we find in this Court's nonprecedential opinions in the years following our decision in Rael-Gallegos,⁴ we take this opportunity to clarify our holding in Rael-Gallegos.

{28} Rael-Gallegos draws what the opinion acknowledges to be “a fine line” between permissible expert testimony (1) “as to typical users and traffickers based on the amount of drugs in their possession, and (2) testimony as to whether “the amounts in the possession of the subject defendant indicated a purpose to traffic and not to use.” 2013-NMCA-092, ¶ 35 (emphasis added). Rael-Gallegos focuses on this stated distinction between expert testimony about the customs and practices typical of drug trafficking in general, and expert opinion that the evidence in the case being tried—the amount of drugs and the nature of the items in the possession of the defendant—shows that the defendant “is trafficking” or that the defendant's intent is to traffic. Intent to distribute is the sole element that distinguishes possession of drugs for personal use from possession of drugs for distribution and, thus, testimony that the defendant “intended to traffic” is tantamount to telling the jury the defendant “is guilty of trafficking.” See § 30-31-20(A)(3) (defining “traffic” to mean “possession with intent to distribute” (emphasis added)); see also Rael-Gallegos, 2013-NMCA-092, ¶ 29 (treating the officer's expert opinion that a defendant intends to traffic as simply another way of testifying to the officer's opinion that the defendant is guilty of trafficking).

{29} The expert testimony challenged on appeal in Rael-Gallegos was a law enforcement officer's observation, based on her training and experience, “differentiating between possession amounts and trafficking amounts of crack cocaine.” Id. ¶ 25. We concluded in Rael-Gallegos that the officer's expert testimony was admissible because “[r]ead in context,” the officer was describing the circumstances she found during her career in other cases when she was involved in an arrest for trafficking, and she “did not relate those cases to [the d]efendant's case.” Id. ¶ 32. The officer “was not asked, nor did she offer, her opinion as to whether [the d]efendant was trafficking cocaine.” Id.

{30} Rael-Gallegos concluded that the officer's testimony was admissible because the officer avoided giving her opinion about whether the evidence in the defendant's case showed that the defendant possessed the drugs with the intent to distribute them. Id. ¶ 32. This Court distinguishes “[t]he type of testimony given by [the officer] as to typical circumstances in law enforcement [that] can assist the jury in understanding intent as to drug use versus drug trafficking,” id. ¶ 37 (emphasis added), and that “educat[es] the jury in regard to what factors, in [the officer's] experience,” indicate trafficking, id. ¶ 33, from impermissible testimony giving the jury the expert's opinion that “the amounts in the possession of the subject defendant indicated a purpose [or intent] to traffic and not to use.” Id. ¶ 35 (emphasis added).

{31} In order to clarify “when an expert crosses the fine line constituting error,” id. ¶ 35, Rael-Gallegos quotes examples of admissible and inadmissible expert opinion from appellate decisions in other states. The testimony at issue in Melton v. State, 824 So. 2d 948, 950 (Fla. Dist. Ct. App. 2002), and Yates v. State, 699 S.E.2d 43, 44 (Ga. Ct. App. 2010), is quoted by this Court in Rael-Gallegos as an example of the type of expert testimony by a law enforcement officer that is admissible in a drug trafficking case. See Rael-Gallegos, 2013-NMCA-092, ¶¶ 30, 32. The testimony quoted from both Melton and Yates informs the jury of the amounts of narcotics generally possessed by the typical user versus the amount generally possessed by a typical seller.⁵ Rael-Gallegos then gives as the example of impermissible expert testimony the expert's opinion in State v. Ogg, 243 N.W.2d 620 (Iowa 1976), that “the amount ․ in the defendant's possession exceeded what one might possess for personal use.” Rael-Gallegos, 2013-NMCA-092, ¶ 31. This testimony by a law enforcement officer is quoted as an example of expert testimony that encroaches on the role of the jury in weighing the evidence and determining guilt or innocence.

{32} The special concurrence disagrees that Rael-Gallegos draws the line between permissible and impermissible law enforcement officer expert testimony by limiting permissible expert testimony to general or typical behaviors of drug traffickers, and prohibiting expert opinion testimony based on the evidence against the defendant in the case being tried. The author believes that the close reading of Rael-Gallegos just discussed supports this holding. Moreover, the author strongly disagrees that such an important matter turns on whether the law enforcement officer testifies that the evidence in the pending case “is trafficking,” “indicates an intent to traffic,” or “is indicative of trafficking,” phrases that the special concurrence agrees cross the line into telling the jury how to decide the case, versus the law enforcement officer testifying that the evidence “is consistent with trafficking,” which the concurrence concludes is admissible expert testimony. In the author's opinion, all of these phrases communicate to the jury that the law enforcement officer has weighed the evidence in the case and concluded that the defendant is guilty of trafficking. Such an expert opinion, in the context of a drug trafficking case, has no purpose apart from advising the jury how law enforcement would decide the case and by implication, how they should decide. The distinction between commenting directly on the state's evidence in the case against a defendant and educating the jury about what evidence is typically associated with drug trafficking, on the other hand, is a straightforward distinction that is supported, as explained in the next section of this opinion, by our rules of evidence and precedent construing those rules.

B. Our Rules Governing the Admission of Expert Testimony Support the Holding of Rael-Gallegos

{33} On appeal, the State and Defendant both rely on precedent in addition to Rael-Gallegos that construes Rule 11-704 in other contexts besides prosecutions for drug trafficking. The State argues that our precedent construing Rule 11-704 supports its reading of Rael-Gallegos to broadly allow expert testimony concerning the ultimate issue in a case, subject only to the requirement that the expert not “tell the jury what to do nor ․ imply that the question of guilt or innocence had been predetermined.” Defendant finds support in Rule 11-704 and the precedent construing that rule for limiting expert testimony in drug trafficking cases to typical trafficking versus personal use practices, the line Defendant argues, and the author agrees, is drawn by Rael-Gallegos.

{34} Assuming that Rael-Gallegos does not fully resolve the question raised, we proceed to address the rules governing the admission of expert testimony and our Supreme Court precedent construing those rules. The majority agrees that the testimony at issue in this case is impermissible under our rules governing expert testimony, but again disagrees about where the line must be drawn in a drug trafficking case under this body of law.

C. Rule 11-704

{35} We agree with the parties that Rule 11-704 is of importance in determining the outer limits of expert testimony. Rule 11-704 provides: “An opinion is not objectionable just because it embraces an ultimate issue.” (Emphasis added.) Our Supreme Court has construed Rule 11-704 to allow the admission of expert testimony “even if it touches upon an ultimate issue to be decided by the trier of fact.” State v. Alberico, 1993-NMSC-047, ¶ 84, 116 N.M. 156, 861 P.2d 192. The Court cautioned, however, that Rule 11-704 “was not intended to permit experts to tell the jury what result to reach.” Alberico, 1993-NMSC-047, ¶ 86 (internal quotation marks and citation omitted).

{36} Our Supreme Court has distinguished inadmissible expert testimony that “tell[s] the jury what result to reach” from admissible expert testimony that touches on an ultimate issue by looking to whether the expert testimony is necessary to help the jury decide the case, one of the foundational requirements found in Rule 11-702 for the admission of expert testimony. Alberico, 1993-NMSC-047, ¶ 86. In its opinion in State v. Lopez, 1973-NMSC-041, ¶ 28, 84 N.M. 805, 508 P.2d 1292, our Supreme Court stated that “ ‘if the matter in dispute and to be decided involves causes and effects which are not within the knowledge or comprehension of the lay trier, expert testimony is admissible as an aid to the decisional process.’ ” (quoting Padgett v. Buxton-Smith Mercantile Co., 262 F.2d 39, 41 (10th Cir. 1958)). The Court further explained that “[i]t is only when the so-called expert testimony involves causes and effects readily within the knowledge or comprehension of the fact triers that we have ruled it out as an usurpation of the judicial function.” Lopez, 1973-NMSC-041, ¶ 28 (internal quotation marks and citation omitted).

{37} In its opinion in Alberico, the Court again explained that where the jury is competent to independently draw a conclusion without additional expert testimony, allowing an expert to tell the jury how the expert would weigh the evidence is “nothing more than advice to jurors on how to decide the case.” 1993-NMSC-047, ¶ 86. “Such testimony was not legitimized by Rule [11-]704, and is not admissible under Rule [11-]702.” Alberico, 1993-NMSC-047, ¶ 86.

{38} We do not question the need for the expert testimony of a law enforcement officer with special knowledge of the patterns and practices associated with drug use and drug trafficking to assist the jury. The parties agree that most jurors are not familiar with the customs and practices of either users or traffickers, and do not know the amount of drugs that are typical of trafficking versus use, what items are typically used to package drugs for sale, or any of the many details of the drug trade addressed in Agent Nordquist's several hours of expert testimony. See State v. Cain, 133 A.3d 619, 627-28 (N.J. 2016) (explaining that “[t]he average juror is not knowledgeable about the arcana of drug-distribution schemes,” and expert assistance is required to inform them about how drugs are trafficked and what sorts of items and behavior are typical of drug trafficking). Once extensive expert testimony about the items and behavior typical of drug trafficking has been presented to the jury, however, the jury is competent to draw its own conclusion as to the defendant's guilt of trafficking. See United States v. Boissoneault, 926 F.2d 230, 233 (2d Cir. 1991) (“Once [the agent] had testified as to the likely drug transaction-related significance of each piece of physical evidence, the jury was competent to draw its own conclusion as to [the defendant's] involvement in the distribution of cocaine.”). Expert testimony that weighs the evidence in the case and tells the jury that a law enforcement officer believes that the evidence shows the defendant “was trafficking” is testimony that, as our Supreme Court held in Alberico, “was not legitimized by Rule [11-]704, and is not admissible under Rule [11-]702.” Alberico, 1993-NMSC-047, ¶ 86.

{39} Rael-Gallegos’s conclusion that it is error to admit into evidence in a drug trafficking case a law enforcement officer's opinion that the evidence “shows” or “indicates” or “is” drug trafficking or that the defendant “has an intent” to traffic is entirely consistent with—and indeed compelled by—our precedent construing Rule 11-704 together with Rule 11-702.

D. Application to the Challenged Opinion Testimony

{40} We begin by noting that Agent Nordquist gave appropriate, admissible expert testimony for several hours, thoroughly educating the jury about the customs and practices typical of narcotics traffickers, providing information about the nature of each narcotic, the methods of ingesting each, the amounts typically purchased and held by drug users, how different narcotics are packaged for sale, how and where the business of selling narcotics is conducted and the drugs and money protected, the amounts of money typically held by dealers and the amounts typically paid by purchasers, and the different customs and practices typical of those possessing narcotics solely for their own use. Agent Nordquist testified from his experience that over 50 percent of those trafficking drugs have one or more firearms to protect themselves from theft; that traffickers carry a lot of cash, usually in a variety of denominations; that drugs are often dealt out of motel rooms rather than out of a residence; that a drug user generally buys 3 to 5 grams of methamphetamine; that drugs for trafficking are often weighed on a scale and then packaged in small plastic baggies; that multiple baggies, scales, multi-denominational cash, firearms, and sometimes pipes and syringes for sale are commonly found where there is drug trafficking; and that drug users often turn to trafficking to get money to buy drugs for their personal use. This testimony stayed well within the line drawn by Rael-Gallegos for admissible expert testimony necessary to assist the jury in a trafficking case.

{41} After the completion of this testimony, the State switched topics, eliciting evidence specific to Defendant's case based on Agent Nordquist's participation in the search of Defendant's motel room. Agent Nordquist was asked to describe the search of the motel room in detail and, in the course of that description, to identify each of the photographs taken by the team of narcotics agents during that search. The State offered thirty-one exhibits through Agent Nordquist's testimony including, in addition to photographs, a scale, plastic baggies, glass pipes, and the bags of narcotics seized from the motel room.

{42} This expert testimony also properly assisted the jury by providing the information the expert has learned about narcotics and drug trafficking from years of experience. Agent Nordquist first provided general information about how the business of trafficking narcotics is typically conducted, and then provided information about how each item seized from Defendant's motel room can be used to prepare the drugs for sale, or alternatively, prepare them to be ingested. When he finished this testimony, the jury was well-prepared to weigh the evidence and come to a verdict. They did not need Officer Nordquist to weigh the evidence for them and tell them that, in his opinion, Defendant “was trafficking.”

{43} The State, however, continued its questioning of Agent Nordquist, asking whether the physical exhibits introduced into evidence—the scale, baggies, and spoons found in Defendant's possession—“In your experience, do they indicate preparation for trafficking?” Agent Nordquist answered, “Yes.” At this point, the State asked the district court to qualify Agent Nordquist as “an expert in street-level narcotics trafficking.” As soon as Agent Nordquist was qualified by the district court as an expert in street-level trafficking, the State asked him whether, in his expert opinion, the methamphetamine seized from the motel room “was for personal use or distribution?” Agent Nordquist answered, “What I found collectively was evidence of trafficking methamphetamine.” Agent Nordquist also was asked by the State for “his opinion as to the amount of methamphetamine in this case?” He testified that “it was being used for trafficking.”

{44} We therefore conclude that Agent Norquist's challenged testimony in this case plainly crossed the line drawn by Rael-Gallegos and by Rules 11-704 and -702 between permissible expert testimony necessary to educate the jury about an unfamiliar field, and impermissible testimony telling the jury that the expert believes the defendant is guilty of drug trafficking, and that the jury should find the defendant guilty. It is important here that the guilt or innocence of Defendant was a decision the jury was perfectly capable of making on its own when it retired moments later to deliberate.

III. Admission of Agent Nordquist's Opinion on Defendant's Guilt Was Plain Error

{45} Because Defendant did not preserve her objection to the testimony challenged on appeal, we review for plain error. Defendant points to extensive precedent acknowledging the highly prejudicial impact on a jury of supposedly “expert” testimony, particularly the testimony of a law enforcement officer, that weighs the evidence for the jury and tells the jury the “right” result. The State argues in response that the admission of the challenged testimony did not have a significant impact on the outcome of the trial or significantly invade Defendant's rights given that Defendant was “caught fairly red-handed in a [motel] room containing narcotics, baggies and a digital scale.” The State claims that any error was corrected by the district court's instruction to the jury, which we should presume the jury followed, that the jury is “the judges of credibility” and “the sole judges of the facts.” Not persuaded by the State's arguments, we agree with Defendant that Agent Nordquist's challenged testimony amounted to plain error under Rule 11-103(E) NMRA.

{46} Rule 11-103(E) allows this Court to review evidentiary questions that are not preserved under a plain error standard. To find plain error, this Court must be convinced “that admission of the [evidence] constituted an injustice that created grave doubts concerning the validity of the verdict,” State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (internal quotation marks and citation omitted); see State v. Chavez, 2024-NMSC-023, ¶ 10, 562 P.3d 521 (“We will not reverse on the basis of plain error unless the error affected a substantial right of the defendant.” (alteration, internal quotation marks, and citation omitted)). The focus of our review is on the error's effect on the overall fairness and integrity of the proceedings, and on the public perception of the proceeding's fairness, rather than on whether the defendant's guilt is so doubtful it would shock the conscience to allow it to stand. Chavez, 2024-NMSC-023, ¶ 11.

{47} We begin our analysis of the impact of Agent Nordquist's challenged testimony on the fairness and integrity of the proceedings by acknowledging the importance of the distinction in our criminal justice system between possessing drugs for trafficking versus possessing drugs for personal use. Drug trafficking offenses are second-degree felonies, see § 30-31-20(B), which can result in a basic sentence of nine years imprisonment for a first offense, see § 30-31-20(B)(1) (classifying a first offense of trafficking methamphetamine as a second-degree felony); see also § 31-18-15(A) (providing basic sentence of a second-degree felony). The possession of methamphetamine for personal use, in contrast, is classified as a fourth-degree felony, see § 30-31-23(E), punishable by a basic sentence of eighteen months imprisonment, see also § 31-18-15(A) (providing basic sentence of a fourth-degree felony).

{48} As many courts have concluded, expert testimony by a law enforcement officer claiming to testify about the “specialized knowledge” they possess based on their experience and training “likely will have a profound influence on the deliberations of the jury.” See Cain, 133 A.3d at 427; see also State v. Wheeler, 416 So. 2d 78, 82 (La. 1982) (stating that there is increased risk of prejudice to a defendant when “the [expert] witness expressing the opinion is one, such as a police officer, in whom jurors and the public repose great confidence and trust”); State v. Renick, A-1-CA-36319, memo. op. ¶ 27 (N.M. Ct. App. Nov. 18, 2019) (nonprecedential) (Ives, J., dissenting in part and concurring in part) (noting that the opinion of a law enforcement officer recognized as an expert “[is] likely to have a powerful impact on juries”).

{49} In its opinion in State v. Ashley, 1997-NMSC-049, ¶¶ 18-19, 124 N.M. 1, 946 P.2d 205, our Supreme Court went a step further, not only suggesting that the admission of law enforcement officer testimony giving the officer's opinion on the defendant's guilt based on the facts in the case being tried is highly prejudicial and invades the defendant's rights, but holding that such testimony from a law enforcement officer impermissibly suggested to the jury that guilt had been determined by a judicial officer, a violation of the defendant's constitutional due process rights.

{50} In this case, there are at least four factors that add to the tendency of a jury to defer to a law enforcement officer's expert opinion on the Defendant's guilt: (1) the law enforcement officer was the sole witness in the case apart from a witness presenting a laboratory report; (2) the same law enforcement officer was both the investigating officer and the State's expert witness; (3) the State repeatedly elicited Officer Nordquist's opinion on Defendant's guilt of trafficking; and (4) the State waited to have the district court certify Agent Nordquist as an expert until just before it repeatedly asked him for his opinion on Defendant's guilt.

{51} In countering this strong support for a finding that the law enforcement officer's improper opinion testimony on Defendant's guilt constituted plain error requiring reversal despite the lack of preservation, the State argues that other evidence strongly supported the verdict. The State's argument, however, misstates the plain error standard: we look to the overall fairness and integrity of the proceedings and need not find that the verdict “shock[s] the conscience.” See Chavez, 2024-NMSC-023, ¶ 11.

{52} Finally, we do not agree with the State's argument that instructing the jury that they are the “sole judge[s] of the facts in this case,” and that they “alone are the judges of the credibility of the witnesses,” cures any error. The jury instructions the State points to are not specific, limiting instructions designed to alert the jury to disregard Agent Nordquist's stated opinion on Defendant's guilt. These general instructions, therefore, were unlikely to overcome the jury's tendency to defer to the expert opinion of a law enforcement officer. We note that the jury was not given UJI 14-118 NMRA, the UJI that informs the jury it can disregard expert testimony entirely if it finds it is not credible. Although this instruction is unlikely to have cured the error here, its absence adds to the likelihood the jury was prejudiced by Agent Nordquist's challenged testimony.

{53} For the reasons stated, we agree with Defendant that admission of Agent Nordquist's opinion that the evidence shows “there was trafficking,” along with the challenged multiple restatements of that opinion, such as the statement, “What I found collectively was evidence of trafficking methamphetamine.” and that the amount of methamphetamine seized in this case “was used for trafficking” impaired the overall fairness and integrity of the proceedings was plain error.

CONCLUSION

{54} We vacate Defendant's conviction of possession with intent to traffic methamphetamine, and remand for retrial on the trafficking charge.

{55} IT IS SO ORDERED.

{56} We agree that the officer's expert testimony in this case crossed the line and amounted to plain error, but cannot agree with the new line proposed in the majority opinion to distinguish admissible versus inadmissible expert testimony. This Court previously established the line in Rael-Gallegos, stating that “the distinction between admissible versus inadmissible expert testimony depends on whether the officer testified directly as to the defendant's intent.” 2013-NMCA-092, ¶ 29. The majority opinion does not engage with this core aspect of Rael-Gallegos’s holding or provide a rationale as to why it is necessary to redraw that line.

{57} Trafficking is defined, in relevant part, as “possession with intent to distribute.” Section 30-31-20(A)(3). Thus, when the officer in this case testified that the evidence “collectively was evidence of trafficking,” and that “there was trafficking of methamphetamine coming out of the room,” the officer testified as to both the possession element and the intent element, because “trafficking” encompasses both propositions. Consequently, the officer's testimony in this case clearly crossed the line into inadmissible expert testimony under the standard articulated in Rael-Gallegos. Based on both the nature of this testimony and the frequency with which it was repeated throughout the case, we have no trouble concluding that the error was plain.

{58} Given that Rael-Gallegos fully disposes of the issue before us, we are not persuaded that it is necessary to redraw the line in the manner proposed by the majority opinion—that is, to limit admissible expert testimony to general or typical behaviors, and prohibit “expert opinion testimony based on the evidence against the defendant in the case being tried.” Maj. op. ¶ 32. Admittedly, this Court has struggled to parse through the fine distinctions that arise from the myriad ways in which the prosecution elicits testimony about whether the evidence against the defendant “shows,” “indicates,” or “is consistent with” trafficking. See Renick, A-1-CA-36319; State v. Taylor, A-1-CA-33951, mem. op. (N.M. Ct. App. Jan. 11, 2016 (nonprecedential); State v. Segura, A-1-CA-28527, mem. op. (N.M. Ct. App. Feb. 24, 2011). Nevertheless, while there is no doubt that the majority opinion offers a clear, workable, and easily applicable standard, we have three significant concerns about adopting a rule that prohibits an expert from testifying about the evidence against the defendant.

{59} First, this bright-line prohibition is facially inconsistent with prior precedents of our Supreme Court that have affirmed the use of similar “consistent with” testimony. See, e.g., Alberico, 1993-NMSC-047, ¶ 84 (holding that “PTSD testimony may be offered to show that the victim suffers from symptoms that are consistent with sexual abuse”); State v. Lucero, 1993-NMSC-064, ¶ 19, 116 N.M. 450, 863 P.2d 1071 (“It is proper, under Alberico, to offer the testimony of a qualified psychologist to show that the complainant's symptoms are consistent with symptoms that have been observed in known victims of sexual abuse because such expert opinion is probative of whether a crime has been committed.”); State v. Consaul, 2014-NMSC-030, ¶ 68, 332 P.3d 850 (“An expert may testify that an observation or an opinion is consistent with an underlying fact, even though that same observation may be consistent with other facts as well. Bloodshot and watery eyes may be consistent with intoxication, but that same observation is consistent with other, noncriminal explanations as well.”); see also Thomas M. Fleming, J.D., Annotation, Admissibility, in Criminal Prosecution, of Expert Opinion Allegedly Stating Whether Drugs Were Possessed With Intent to Distribute—State Cases, 83 A.L.R.4th 629 (1991) (collecting cases as to expert testimony on whether drugs were possessed with intent to distribute).

{60} Second, the rule announced today creates an obvious tension with a directive this Court has previously given to the State regarding its evidentiary burden in trafficking cases. In State v. Hubbard, 1992-NMCA-014, ¶ 15, 113 N.M. 538, 828 P.2d 971, this Court stated that

[the d]efendant's final argument on the sufficiency issue is that this court should adopt a specific test, either indicating what amount of drugs must be found in order to charge an accused with the crime of trafficking, or listing what factors are relevant to the determination. However, contrary to [the] defendant's assertions, we believe present New Mexico cases adequately provide a test for what constitutes an “intent to transfer” drugs according to New Mexico law. While we are cognizant of [the] defendant's concern that small amounts of drugs are sometimes the basis for trafficking prosecutions, we believe that the “surrounding circumstances” test protects against the concern articulated by [the] defendant. If the amount of an illegal drug found in an accused's possession is not by itself sufficient to prove inconsistency with personal use, then the state must present testimony that the amount of drugs in the accused's possession is inconsistent with personal use or that the other items found in possession of the accused, such as drug paraphernalia or significant sums of cash, show that the accused intends to transfer drugs.

(Emphasis added.) Thus, when the evidence presents a close call about whether the drugs at issue were for personal use or for trafficking, Hubbard requires the State to present testimony concerning the specific evidence in the defendant's case, but the majority opinion would prevent an expert from providing such testimony. It's not apparent how prosecutors and district courts can navigate these competing directives in future prosecutions.

{61} Finally, while we believe the majority opinion is intended to be limited solely to trafficking cases, the opinion does not clearly express such a limitation. As a result, we worry that confusion will follow as to how this rule applies in other criminal prosecutions where experts are routinely called upon to offer similar ultimate issue opinion testimony.

{62} For these reasons, we readily concur with the result reached in this case on plain error grounds, but harbor concern about the standard for admissibility announced in the majority opinion. We wish to emphasize that although this standard appears in the majority opinion, it does not carry the support of a majority of judges on this panel and is therefore not precedential.

FOOTNOTES

1.   The 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.

2.   Although 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.

3.   The 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.

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.

5.   Rael-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).

JANE B. YOHALEM, Judge

MEGAN P. DUFFY, Judge, specially concurring GERALD E. BACA, Judge, concurring in special concurrence