2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 31 - Controlled Substances
Section 30-31-20 - Trafficking controlled substances; violation.
A. As used in the Controlled Substances Act, "traffic" means the:
(1) manufacture of a controlled substance enumerated in Schedules I through V or a controlled substance analog as defined in Subsection W of Section 30-31-2 NMSA 1978;
(2) distribution, sale, barter or giving away of:
(a) a controlled substance enumerated in Schedule I or II that is a narcotic drug;
(b) a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; or
(c) methamphetamine, its salts, isomers and salts of isomers; or
(3) possession with intent to distribute:
(a) a controlled substance enumerated in Schedule I or II that is a narcotic drug;
(b) controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; or
(c) methamphetamine, its salts, isomers and salts of isomers.
B. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally traffic. A person who violates this subsection is:
(1) for the first offense, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(2) for the second and subsequent offenses, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
C. A person who knowingly violates Subsection B of this section within a drug-free school zone excluding private property residentially zoned or used primarily as a residence is guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
History: 1953 Comp., § 54-11-20, enacted by Laws 1972, ch. 84, § 20; 1974, ch. 9, § 1; 1980, ch. 23, § 1; 1987, ch. 68, § 2; 1990, ch. 19, § 3; 2006, ch. 17, § 2.
ANNOTATIONSCross references. — For instructions as to trafficking in controlled substances, see UJI 14-3110 NMRA et seq.
The 2006 amendment, effective July 1, 2006, added Subparagraph (c) to Paragraph (2) of Subsection A to provide that traffic means distribution, sale, barter or giving away of methamphetamine and its salts and isomers and added Subparagraph (c) to Paragraph (3) of Subsection A to provide that traffic means the possession with intent to distribute methamphetamine and its salts and isomers.
The 1990 amendment, effective July 1, 1990, substituted "Subsection W" for "Subsection X" in Paragraph (1) and made minor stylistic changes in Paragraphs (2) and (3) of Subsection A, and added Subsection C.
I. GENERAL CONSIDERATION.
Advice about possible sentence enhancements. — Where the defendant entered a no contest plea to trafficking cocaine; the district court informed the defendant that the trafficking charge would be a second degree felony with a maximum basic sentence of nine years and that the basic sentence could be enhanced under the habitual offender statute if the defendant had any undisclosed prior felony convictions; the state filed supplemental criminal information alleging that the defendant had three prior felony convictions, two of which were trafficking offenses; there was no indication in the record that before the defendant entered a plea of no contest to the three prior convictions that the defendant was advised about a potential enhancement under the trafficking statute or that the trafficking charge could be treated as a first degree felony with a basic sentence of eighteen years, the court did not adequately and accurately advise the defendant of the possible sentencing enhancements the defendant faced by pleading no contest. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110.
Act not applicable. — Where defendant did not engage in extraction from substance of natural origin or chemical synthesis, cultivating and growing psilocybin mushrooms, even if by artificial means, is not prohibited by this section. State v. Pratt, 2005-NMCA-099, 138 N.M. 161, 117 P.3d 967, cert. denied, 2005-NMCERT-008, 138 N.M. 328, 119 P.3d 1265.
Title constitutional. — The title of Laws 1972, Chapter 84, of which this section is a part, does not violate N.M. Const., art. IV, § 16, by embracing more than one subject, because although the act also amends sections of the state Drug and Cosmetic Act (Drug, Device and Cosmetic Act, 26-1-1 NMSA 1978), the amendments are all concerned with drugs. State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180.
Defendant's contention that this section violated N.M. Const., art. IV, § 16, because it is concerned with trafficking in controlled substances, while title of the act of which it is a part does not include trafficking, was without merit since prohibition on trafficking was a detail germane to drugs, their administration and penalties. State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180.
Title of act constitutional. — Sections 30-31-21 to 30-31-25 NMSA 1978, which define unlawful activities and provide penalties, are not unconstitutional because "unlawful activities" are not mentioned in the title of the act. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Constitutionality. — Subsection A(3) is not unconstitutionally overbroad, as it does not sweep within its ambit actions that would ordinarily be deemed to be constitutionally-protected activities. State v. Curry, 1988-NMCA-031, 107 N.M. 133, 753 P.2d 1321, cert. denied, 107 N.M. 132, 753 P.2d 1320.
Special laws prohibited. — Section 30-31-20B(2) NMSA 1978 applies to all second and subsequent trafficking offenses, and, therefore, does not violate the prohibition against special laws of N.M. Const., art. IV, § 24; nor does it violate the requirements of equal protection. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert. quashed, 104 N.M. 54, 716 P.2d 245 (1986).
Section applicable to physician. — This section applies to a physician who gives out drugs for something other than a legitimate medical purpose. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Delivery which is effected by a physician which is not for a legitimate medical purpose is not excepted from the prohibitions of the Controlled Substances Act. When a physician acts without any legitimate medical purpose and beyond the course of professional practice by selling prescriptions that allow the bearer to obtain controlled substances, his conduct should be treated like that of any street-corner pill pusher. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Miranda warnings from informer unnecessary. — Claim that defendant should have been given Miranda warnings immediately prior to selling heroin to informer, who was accompanied by an undercover policewoman, was without merit. State v. Anaya, 1969-NMCA-120, 81 N.M. 52, 462 P.2d 637.
Sections not inconsistent. — There is no conflict between Section 30-31-22A NMSA 1978 which excludes narcotic drugs enumerated in Schedule I, such as heroin, from its purview, and this section, under which trafficking in narcotic drugs is prohibited. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Plain meaning of this section should be given effect, unless this leads to an absurd or unreasonable result. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Heroin is narcotic drug as matter of law. State v. Gonzales, 1974-NMCA-080, 86 N.M. 556, 525 P.2d 916, overruled on other grounds by State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796 (decided under prior law).
Because there is no evidence that defendant engaged in "extraction from substances of natural origin or chemical synthesis" as defined by Section 30-31-2 M NMSA 1978, his acts of cultivating or growing mushrooms, even if by artificial means, are not prohibited by Subsection A(1) of this section. State v. Pratt, 2005-NMCA-099, 138 N.M. 161, 117 P.3d 967, cert. denied, 2005-NMCERT-008, 138 N.M. 163, 117 P.3d 967.
Attempt to acquire by misrepresentation not more specific statute. — A defendant charged with attempt to traffic cocaine under Subsection A of this section was not entitled to be charged under Section 30-31-25A(3) NMSA 1978 ("attempt to acquire controlled substance by misrepresentation") since the elements defined in both offenses are so distinct that the specific-statute doctrine does not apply. State v. Villalobos, 1995-NMCA-105, 120 N.M. 694, 905 P.2d 732, cert. quashed, 121 N.M. 676, 916 P.2d 1343 (1996).
Trafficking committed irrespective of manufacturer's intention. — The crime of trafficking by manufacturing is committed irrespective of any consideration of whether the manufacturer intended to distribute the controlled substance or keep it for his or her personal use. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
Entrapment submitted to jury. — Issue of entrapment in prosecution for selling and distribution of heroin was properly submitted to the jury, where the evidence raised a factual question concerning defendant's predisposition to sell or distribute heroin and concerning the extent of agent's activity in connection with the heroin. State v. Wilson, 1974-NMCA-059, 86 N.M. 348, 524 P.2d 520.
Severance not necessary. — It was not error for the trial court to refuse to grant motion for severance where defendant was charged with having made three sales to the same individual in the same community and all within a comparatively short period of time, and no prejudice to defendant had been shown. State v. Riordan, 1974-NMCA-013, 86 N.M. 92, 519 P.2d 1029.
First offense punishable as second degree felony. — Sentence of 10 to 50 years imposed on defendant, convicted of trafficking prior to the 1974 amendment to this section, was proper; as the statute then declared the crime to be a second degree felony, Section 31-18-11 NMSA 1978 (now repealed), making a "felony" as to which a penalty is not specified a fourth degree felony, was not applicable. State v. Herrera, 1974-NMSC-037, 86 N.M. 224, 522 P.2d 76 (decided under prior law).
Procedure upon conviction of subsequent offense. — Upon proof that a conviction is a second or subsequent conviction for trafficking, Subsection B requires that the previous sentence be vacated and that the sentence imposed by law be imposed. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert. quashed, 104 N.M. 54, 716 P.2d 245 (1986).
Notice prior to sentencing as second offender. — Although former narcotic drug statute failed to specify the precise manner in which a prior conviction was to be brought to the attention of the defendant and the court, essential fairness required that there be some pleading filed by the state, whether it be by motion or otherwise, by which a defendant would be given notice and opportunity to be heard before an increased penalty could be imposed. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214, appeal after remand, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47; State v. Santillanes, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354.
Since there was never any charge filed against defendant which would give him notice that, if convicted, he would be sentenced as a second offender, and even though no objection was made by the defendant or his counsel to the questioning by the court as to the prior conviction, sentencing him as a second offender was a denial of due process of law, in that there was no notice or true opportunity to be heard, in a constitutional sense. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214, appeal after remand, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47.
Enhancement proceeding. — When an enhancement proceeding is brought after the defendant has begun serving his sentence on the most recent convictions, there is no violation of either the right of due process or the right against double jeopardy, even in the absence of statutory authorization of such a procedure. State v. Santillanes, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354.
Since defendant's prior convictions for cocaine trafficking and possession of marijuana with intent to distribute resulted from a single arrest, the court did not make an impermissible "double use" of the prior convictions by utilizing the prior cocaine trafficking conviction to enhance the defendant's present cocaine trafficking conviction to a first degree felony pursuant to Section 30-31-20B(2) NMSA 1978, and then using the other prior conviction for possession of marijuana to enhance defendant's sentence under the general habitual-offender statute, Section 31-18-17 NMSA 1978. State v. Hubbard, 1992-NMCA-014, 113 N.M. 538, 828 P.2d 971, cert. denied, 113 N.M. 352, 826 P.2d 573.
Conditional discharge is not a prior offense for enhancement purposes. — Where defendant received a conditional discharge dismissing his first drug trafficking offense, and four years later was arrested and charged with trafficking methamphetamine, the conditional discharge could not be considered a prior offense for purposes of enhancement, because a conditional discharge entered without an adjudication of guilt is not considered a conviction. State v. Lassiter, 2016-NMCA-078, cert. denied.
When federal offense is prior conviction. — State convictions of trafficking of a controlled substance are "subsequent" to a federal conviction since the elements necessary to prove the federal offense are the same as those required to prove the state charges. Therefore, the federal offense is a prior conviction for purposes of the penalty provisions of the Controlled Substances Act. State v. Garduno, 1979-NMSC-072, 93 N.M. 335, 600 P.2d 281.
Applicability of habitual offender statute. — In 1983 the habitual offender statute was amended to include persons convicted of narcotics offenses, overruling that part of State v. Lujan, 1966-NMSC-051, 76 N.M. 111, 412 P.2d 405, which held that the Habitual Offender Act (Habitual Criminal Act) did not apply to persons convicted under the Controlled Substances Act. Minner v. Kerby, 30 F.3d 1311 (10th Cir. 1994).
II. ELEMENTS OF TRAFFICKING CONTROLLED SUBSTANCE.
Proof of knowledge of drug-free school zone required. — The term "knowingly" in Subsection C of Section 30-31-20 NMSA 1978 requires specific knowledge that the offense of trafficking controlled substances will occur within the drug-free school zone, and the state must prove knowledge of the drug-free school zone as an essential element of distributing drugs in a drug-free school zone. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Where undercover police officers stopped defendant and asked defendant for drugs; defendant told the officers that defendant was going to buy drugs down the street; defendant left and returned with a third person to the officers' car; the third person sold cocaine to the officers; the sale occurred within a drug-free school zone; and there was no evidence that defendant knew that the sale of the drugs would occur within a drug-free school zone, the evidence was insufficient to support defendant's conviction of conspiracy to traffic cocaine within a drug-free school zone. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Section does not require specific intent. — Trafficking in a controlled substance by distribution is not a specific intent crime. Since this section prohibiting trafficking by "distribution, sale, barter or giving away any controlled substance . . . which is a narcotic drug" only describes a particular act without reference to a defendant's intent to do some further act or achieve some additional consequence, the crime is properly one of general intent. State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.
Trafficking by distribution is not a specific intent crime. State v. Turner, 1981-NMCA-144, 97 N.M. 575, 642 P.2d 178, cert. quashed, 98 N.M. 51, 644 P.2d 1039 (1982).
Elements of offense of transferring controlled substance. — In order to find a defendant guilty of transferring a controlled substance, the state must prove beyond a reasonable doubt that: (1) the defendant transferred a controlled substance; (2) the defendant knew or believed it was a controlled substance; and (3) the transfer occurred in New Mexico on a particular date. Martinez v. State, 1978-NMSC-051, 91 N.M. 747, 580 P.2d 968.
Knowledge of presence and narcotic character of drug essential. — In a prosecution for trafficking in narcotics, the state must prove that defendant knew of the presence and narcotic character of the object possessed. State v. Gonzales, 1974-NMCA-080, 86 N.M. 556, 525 P.2d 916, overruled on other grounds by State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.
Knowledge with control. — Since he was not in physical possession of the heroin when it was found by the officers, to be convicted defendant must have constructively possessed it, that is, he must have had knowledge of the presence of the heroin and control over it. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.
Ownership not element. — This section prohibits a defendant from transferring narcotics by way of distribution, sale, barter, or gift: Ownership is not an element. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303, cert. denied, 104 N.M. 201, 718 P.2d 1349.
III. DOUBLE JEOPARDY.
Trafficking methamphetamine by manufacture and possession of drug paraphernalia. — Where the defendant was convicted of trafficking methamphetamine by manufacture for possession of items that could be used to manufacture methamphetamine and possession of drug paraphernalia for possession of items that could be used to consume methamphetamine and marijuana, and where the items used to consume drugs were not necessary to manufacture methamphetamine, the defendant's conduct was not unitary and the defendant's convictions did not violate double jeopardy. State v. Vance, 2009-NMCA-024, 145 N.M. 706, 204 P.3d 31, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
Double jeopardy. — Since marijuana is not defined as a narcotic drug, trial court acquired no jurisdiction when defendant was charged with violating this section by selling marijuana, hence, there was no basis for a claim of double jeopardy where defendant was later charged under the proper section. State v. Mabrey, 1975-NMCA-098, 88 N.M. 227, 539 P.2d 617.
The defendant's distribution of drug samples and subsequent distribution of larger quantities of the same drugs to the same persons constituted separate transaction under this section and convictions on distinct counts of trafficking a controlled substance did not violate double jeopardy. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, cert. denied, 121 N.M. 375, 911 P.2d 883.
Where a trial court convicted defendant of one count of a second offense of trafficking a controlled substance and one count of conspiracy to commit that offense, and in sentencing defendant, the trial court used defendant's prior convictions twice to increase the punishment, the prior trafficking conviction could not be used to set defendant's underlying conspiracy to commit trafficking conviction as a second degree felony, and then be used to enhance defendant's sentence under the habitual offender statute. State v. Lacey, 2002-NMCA-032, 131 N.M. 684, 41 P.3d 952, cert. denied, 131 N.M. 737, 42 P.3d 842.
Convictions for trafficking controlled substances with intent to distribute and conspiracy based on a single act. — Where defendant was convicted of trafficking a controlled substance by possession with intent to distribute in violation of Subsection A of this section and conspiracy to commit the same crime in violation of 30-28-2 NMSA 1978, both charges based on evidence of a single sale of drugs by defendant; the defendant's conduct underlying both crimes was unitary, and the state relied on the same evidence, the single sale of drugs from defendant to the co-conspirator, as the basis to convict for both crimes; the defendant was convicted twice and is being punished twice for the same offense, resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006, aff'g 2013-NMCA-093, 310 P.3d 621.
Merger with charge of conspiracy to racketeer. — In order for the jury to have convicted defendant of conspiracy to racketeer pursuant to the court's instruction, it was also necessary for the state to prove, and the jury to find, that she and another conspired to traffic by manufacture. Thus, the two offenses for which defendant was convicted merged under the facts and circumstances of the case. State v. Wynne, 1988-NMCA-106, 108 N.M. 134, 767 P.2d 373, cert. denied, 108 N.M. 115, 767 P.2d 354 (1989).
Possession deemed lesser offense. — Possession of heroin is a lesser offense included within the offense of possession with intent to distribute heroin. State v. Alderete, 1977-NMCA-130, 91 N.M. 373, 574 P.2d 592, cert. denied, 91 N.M. 491, 576 P.2d 297 (1978).
Separate offenses. — As there is no ambiguity in this section, which prohibits the sale of "any" controlled substance, where evidence showed sales to two separate people, there were two offenses and consecutive sentences received by defendant did not constitute an abuse of the trial court's discretion. State v. Burrell, 1976-NMCA-025, 89 N.M. 64, 547 P.2d 69.
Drug trafficking statute authorizes separate prosecution and punishment for distinct transfers of controlled substances. — Where defendant was convicted of trafficking cocaine by distribution and possession of cocaine with intent to distribute, his constitutional right to be free from double jeopardy was not violated, because the legislature clearly intended, in its enactment of 30-31-20 NMSA 1978 criminalizing drug trafficking, to authorize separate prosecution and punishment for each individual transfer or delivery under the circumstances where the transfer is not contemporaneous, and the evidence presented at trial showed that defendant's convictions arose from two separate transfers of a controlled substance, where in each exchange defendant transferred a distinct quantity of cocaine to the undercover officer in exchange for a distinct sum of money. State v. Bello, 2017-NMCA-049, cert. denied.
IV. EVIDENCE AND PROOF.
A. IN GENERAL.
Inference of knowledge of presence of drugs. — While knowledge of the presence of drugs may be inferred where exclusive possession of the premises is shown, where exclusive possession is not shown, additional evidence is required to support such an inference. State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246, cert. denied, 112 N.M. 440, 816 P.2d 509.
Inference of control of drugs. — Control of the premises on which contraband is found is not sufficient to support a determination of criminal liability. There must be knowledge of the presence of the contraband, and there must be evidence sufficient to support an inference of control of the contraband. State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246, cert. denied, 112 N.M. 440, 816 P.2d 509.
Constructive possession. — Constructive possession is sufficient to convict for trafficking by possession with intent to distribute. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, cert. quashed, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.
Narcotic character. — The burden of proof was on the defendant to prove that substance identified as heroin was not a narcotic drug as an exemption or exception. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Proving intent by inference. — Intent may be proved by inference from the surrounding facts and circumstances, such as the quantity and manner of packaging of the controlled substance. State v. Muniz, 1990-NMCA-105, 110 N.M. 799, 800 P.2d 734, cert. denied, 110 N.M. 749, 799 P.2d 1121.
Proving knowledge of narcotic character. — While there is no requirement that proof of possession with knowledge of narcotic character should be by direct or uncontradicted evidence, nevertheless, the evidence must be such as discloses some conduct, declarations or actions on the part of the defendant sufficient to satisfy the fact finder beyond a reasonable doubt that he had knowledge of the presence and nature of the narcotics. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210, overruled on other gounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.
Proof of possession of controlled substance may be established by evidence of the conduct and actions of a defendant, and by circumstantial evidence connecting the defendant with the crime. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.
When inference of constructive possession proper. — Since defendant's wife resided with him, he was not in exclusive possession of the premises, and an inference of constructive possession could not be drawn against him unless there were incriminating statements or circumstances tending to support the inference. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.
Admission of gun evidence was harmless error. — Where defendant was charged with trafficking a controlled substance, tampering with evidence, resisting, evading, or obstructing an officer, and possession of drug paraphernalia after law enforcement officers conducted a traffic stop, during which defendant was found with a large amount of money on his lap and sixty-three small baggies of crack cocaine, and subsequently searched defendant's home, finding a .380 caliber semi-automatic pistol, several small zip-lock baggies, several digital scales, and a brown bag with small zip-lock baggies inside, and where, at trial, defendant objected to the admission of evidence that a gun was found at his residence, claiming that he was not armed at the time of his arrest and that the gun evidence created the impression that he was dangerous and that, in turn, encouraged the jury to convict him of trafficking a controlled substance rather than simple possession, the admission of the gun evidence, assuming error, was harmless. It was doubtful that the admission of the gun evidence had any probable impact on the jury's deliberations regarding trafficking versus possession, considering the evidence that defendant was apprehended with sixty-three baggies of crack cocaine, individually packaged, indicating that the drugs were intended for sale to individuals, in addition to the discovery of digital scales and empty small baggies at defendant's residence. State v. Jackson, 2021-NMCA-059, cert. denied.
B. CIRCUMSTANTIAL EVIDENCE.
Conviction sustained by circumstantial evidence. — A conviction for trafficking in a controlled substance can be sustained by circumstantial evidence. State v. Chouinard, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680, cert. denied, 456 U.S. 930, 102 S. Ct. 1980, 72 L. Ed. 2d 447 (1982).
Circumstantial evidence is sufficient to support a conviction for possession of heroin with an intent to distribute where the defendant was caught with a small amount of heroin, there is an inference that more heroin was flushed down a toilet, and there was paraphernalia at the scene of the arrest consistent with distribution of heroin. State v. Bejar, 1984-NMCA-031, 101 N.M. 190, 679 P.2d 1288, cert. denied, 101 N.M. 189, 679 P.2d 1287; State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert. quashed, 104 N.M. 54, 716 P.2d 245.
Circumstantial evidence on nature of substance. — Although there was no direct scientific evidence that the substance which defendant was convicted of trafficking in by possession with intent to distribute was heroin, there was substantial, almost overwhelming, circumstantial evidence to that effect, which was sufficient to sustain the convictions. State v. Armijo, 1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.
Inference of trafficking from amount of drug found. — Evidence that the heroin found weighed 3.3 grams and was 16% pure while street heroin is usually 3% to 5% pure and packaged in weights of 20 to 40 milligrams, that reduction of the heroin to street purity packaged for street sale would result in at least 264 caps of heroin, that heroin is generally packaged for resale on the street in small tinfoil packets such as were found and that search failed to disclose paraphernalia indicating use of the heroin on the premises, permitted the inference that defendant intended to distribute the heroin. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.
Proof of possession of a large quantity of a controlled substance, inconsistent with personal use, is sufficient proof of trafficking in a controlled substance. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.
Amount of drug inconsistent with personal use. — 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, showed that the accused intended to transfer drugs. State v. Hubbard, 1992-NMCA-014, 113 N.M. 538, 828 P.2d 971, cert. denied, 113 N.M. 352, 826 P.2d 573.
Using weight alone to show intent to distribute. — Where there was no evidence of the concentration of the drug, and no evidence of how long it would normally take a single drug user to consume a given quantity, the weight of the amount recovered (just under two ounces) could not in itself enable a fact finder to conclude, beyond a reasonable doubt, that defendant intended to distribute the substance. State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246, cert. denied, 112 N.M. 440, 816 P.2d 509.
Conspiracy to traffic. — The size (one-half to one ounce amounts), frequency (nine transactions in approximately seven weeks) and manner of the transactions (cash, after the receipt of a phone call) were evidence sustaining defendant's conviction for conspiracy with two others to traffic in heroin, and the jury could properly conclude that the heroin defendant supplied was for resale. State v. Armijo, 1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.
C. SUFFICIENCY OF EVIDENCE.
Evidence of trafficking by possession was sufficient. — Where a police officer found defendant passed out in a car; when defendant stepped out of the car, a plastic bag containing crack cocaine fell out of defendant's purse; the officer arrested defendant and conducted inventory searches of the car; the officer found two separate amounts of cash totaling $520, a crack pipe, a second bag containing nineteen "rocks" of crack cocaine, three cell phones and baggies in the console of the car; the car was owned by defendant and defendant was the sole occupant of the car; and an expert witness testified that based on the amount of cocaine, baggies, multiple cell phones and amount of cash found in the car, defendant was a trafficker, there was sufficient evidence to support defendant's conviction of trafficking by possession with intent to distribute cocaine. State v. Rael-Gallegos, 2013-NMCA-092, cert. denied, 2013-NMCERT-009.
Sufficient evidence to convict of manufacturing methamphetamine. — Where a police officer was dispatched to investigate a trash fire; the officer observed bottles of acetone in the burnt trash pile; the officer discovered a meth lab in the house near the trash fire; the officer discovered mail in the house with defendant's name on it; two persons who were on the property stated that defendant lived in the house; one person testified that defendant used Sudafed and the acetone to make methamphetamine, and that the person had obtained methamphetamine from defendant on the day the officer discovered the meth lab; and the other person testified that defendant had been at the house on the morning the officer discovered the meth lab, the evidence was sufficient to permit the jury to reasonably infer that defendant manufactured methamphetamine. State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, cert. denied, 2010-NMCERT-007, 148 N.M. 611, 241 P.3d 612.
Sufficient evidence. — Where defendant quoted a price for methamphetamine to two contacts who wanted to sell the methamphetamine to undercover police officers; the contacts left defendant to meet the officers to confirm that the price was acceptable; the contacts returned to defendant and purchased the methamphetamine; and the contacts then delivered the methamphetamine to the officers in a public school parking lot, there was sufficient evidence to convict defendant, as a principal, of causing the transfer of methamphetamine in a drug free zone. State v. Montes, 2007-NMCA-083, 142 N.M. 211, 164 P.3d 102.
Sufficient evidence of trafficking cocaine by distribution and by possession with intent to distribute. — Where defendant was convicted of trafficking cocaine by distribution and by possession with intent to distribute, there was sufficient evidence to support defendant's convictions where the state presented evidence that the undercover officer gave an intermediary a $20 bill and watched as defendant removed an unknown substance from his mouth, gave it to the intermediary in exchange for the buy money, and the intermediary returned and gave the officer a package containing a small rock, which later tested positive as cocaine, and evidence that defendant sold the officer a second rock for $10 after the officer complained about the small size of the first rock of cocaine, from which a jury could reasonably infer that defendant was in possession of the first rock of cocaine and intended to transfer it to the officer through the intermediary and that defendant transferred the second rock of cocaine directly to the undercover officer. State v. Bello, 2017-NMCA-049, cert. denied.
Sufficient evidence of trafficking controlled substances. — Where defendant was charged with trafficking methamphetamine and distribution of synthetic cannabinoids after the state alleged that an accomplice, at the direction of defendant, delivered methamphetamine and synthetic cannabinoids hidden in deodorant sticks to an inmate confined in the Curry county detention center, there was sufficient evidence to sustain defendant's convictions beyond a reasonable doubt where the state presented evidence of recorded phone calls between defendant and the inmate where, according to testimony by the investigating officer, the two men used code words to discuss that defendant was going to obtain illegal narcotics by using the inmate's money from the jail, hide the narcotics in hygiene products, and send the hygiene products into the jail through a third person, and evidence that an inspection of the hygiene products at issue contained a green leafy substance and crystal-like substance wrapped in small baggies in the bottom of deodorant sticks, which were later identified as methamphetamine and synthetic cannabinoids. State v. Salazar, 2018-NMCA-030, cert. denied.
Sufficient evidence of conspiracy to commit drug trafficking. — Where defendant was convicted by a jury of conspiracy to commit drug trafficking, there was sufficient evidence to support the conviction where evidence established that defendant was associated with a methamphetamine trafficking organization known as the AZ Boys, that the organization was run by defendant's boyfriend and his brother, that defendant had asked a friend, who later became a police informant, to transport drugs, that the informant made several trips transporting drugs with defendant and her boyfriend in exchange for cash and drugs, and that law enforcement recovered four pounds of methamphetamine from the spare tire of the truck the informant had driven for the organization, and, based on evidence that defendant had options available to her other than committing the offense, a rational jury could have determined beyond a reasonable doubt that defendant did not act under duress. State v. Catt, 2019-NMCA-013, cert. denied.
Overt act for attempt to manufacture methamphetamine. — Defendant's acts, including obtaining and possessing suspiciously large amounts of pseudoephedrine and iodine, by traveling to Clovis to obtain inexpensive iodine, renting a motel room where unpackaged pseudoephedrine was stored, and smoking methamphetamine in a room containing over 5,000 pseudoephredrine pills, are sufficient to constitute an overt act in furtherance of the manufacture of methamphetamine. State v. Brenn, 2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050, cert. denied, 2005-NMCERT-010, 138 N.M. 494, 122 P.3d 1263.
Conviction despite no actual possession. — Defendant failed to effect the crime of possession with intent to distribute because he never actually possessed the package containing cocaine which was addressed to him; nevertheless, the fact that he never actually possessed the package did not negate his intent to possess the package, as evidenced by his attempting to pick up the package, nor did it negate his intent to distribute the cocaine, as is evidenced by the amount of cocaine found in the package. Therefore, he was properly convicted of attempted trafficking under Section 30-28-1 NMSA 1978 and Subsection A(3) of this section. State v. Curry, 1988-NMCA-031, 107 N.M. 133, 753 P.2d 1321, cert. denied, 107 N.M. 132, 753 P.2d 1320.
When the evidence shows a third party engaging in drug trafficking by possession with intent to distribute a narcotic drug, and the defendant is the third party's accomplice, the evidence is sufficient to support a conviction under Subsection A(3). The fact defendant never touched the cocaine and was often not in the same room where the drug deal took place is not controlling. State v. Bankert, 1994-NMSC-052, 117 N.M. 614, 875 P.2d 370.
There was sufficient evidence for conviction since it was shown that the defendant was the owner of the premises from which the sale of illegal drugs was carried out in her presence and within her view. State v. Chandler, 1995-NMCA-033, 119 N.M. 727, 895 P.2d 249, cert. denied, 119 N.M. 617, 894 P.2d 394.
Expert testimony identifying substance. — Direct testimony by expert that he analyzed substance according to standard tests and found it to be morphine was sufficient evidence that the substance, which had been sold by defendant, was morphine, despite the fact that on cross-examination the expert did not remember specifically which tests he had used, nor how many different tests he conducted. State v. Baca, 1970-NMCA-075, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984.
Sufficient evidence to convict. — Where (1) defendant "transferred cocaine to another"; (2) defendant "knew that it was cocaine or believed it to be cocaine or believed it to be some drug or other substance the possession of which is regulated or prohibited by law"; and (3) "this happened in New Mexico on or about the 21st day of July, 1994" there was sufficient evidence to convict. State v. Cooper, 1998-NMCA-180, 126 N.M. 500, 972 P.2d 1, cert. denied, 126 N.M. 532, 972 P.2d 351.
The following substantial evidence supports a conviction for trafficking cocaine with intent to distribute: (1) testimony that people came to the motel door asking for defendant; (2) the presence of a digital scale and razor blade indicating that cocaine was being cut and weighed for distribution; (3) evidence that a portion of the crack cocaine was ready for sale while another bundle was not yet cut in the bathroom; (4) defendant's presence in the bathroom area; and (5) the testimony of one of the detectives that the quantity seized and the drug paraphernalia were consistent with trafficking. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, cert. quashed, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.
Identity of substance a jury question. — Evidence that defendant stated he had brought five vials of morphine to an arranged meeting, that the vial sold, which was sealed and contained a yellowish liquid labeled dilaudid HCL, was taken from the same pocket as other vials and looked the same as others tested and shown to contain a morphine derivative, along with defendant's statement that he had injected the contents of a vial several hours before and was still feeling the effects, and fact that one of the users of the contents of the vial in question claimed to experience a "tingly feeling" was sufficient to present a jury question as to whether the contents of the vial sold were a controlled substance, and being substantial was sufficient to sustain conviction. State v. Burrell, 1976-NMCA-025, 89 N.M. 64, 547 P.2d 69.
Inference of trafficking from possession by nonuser. — Where evidence showed that defendant was in possession of more than 30 caps of heroin, while defendant himself testified that he was not and had never been a heroin user, the only possible inference was that defendant, at the least, intended to give the heroin away, and this evidence was sufficient to conclude that he was trafficking in heroin. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 28, 536 P.2d 1085, and cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).
Attempted trafficking of cocaine. — Defendant was properly convicted for attempted trafficking in cocaine since he committed the overt acts of accepting a sizeable amount of cash from an undercover narcotics officer and engaging in prior discussion of the illicit transaction. State v. Green, 1993-NMSC-056, 116 N.M. 273, 861 P.2d 954.
Purchaser not guilty of solicitation to traffic. — Even though the defendant's actions in negotiating for the purchase of drugs fall within the definition of criminal solicitation, his conduct was necessarily incidental to the crime of trafficking through the sale of a controlled substance and he could not be guilty of solicitation to traffic. State v. Pinson, 1995-NMCA-045, 119 N.M. 752, 895 P.2d 274.
Growing marijuana. — Growing marijuana, without more, does not support a charge of trafficking in marijuana by manufacture. State v. Shaulis-Powell, 1999-NMCA-090, 127 N.M. 667, 986 P.2d 463, cert. denied, 127 N.M. 391, 981 P.2d 1209.
Sufficient evidence. — Where a police officer conducted a search incident to the arrest of defendant for DWI; the officer found a uniquely folded dollar bill in defendant's pocket; the officer unfolded the dollar bill and uncovered a white, powdery substance that was later confirmed to be cocaine; and the officer testified that dollar bills were often used as a way to conceal and later ingest cocaine, the evidence was sufficient for a reasonable jury to conclude that the evidence found on defendant was cocaine and that based on the way the dollar bill was folded and its location in defendant's pocket, defendant was aware that the substance was cocaine or another controlled substance. State v. Armendariz-Nunez, 2012-NMCA-041, 276 P.3d 963, cert. denied, 2012-NMCERT-003.
V. INDICTMENT AND INFORMATION.
Indictment charging alternatives. — Where an indictment charged that the defendants "did intentionally distribute, possess with intent to distribute, or aided and abetted one another in the distribution of a controlled substance," the indictment gave each defendant notice that he must defend against each of these alternatives. State v. Turner, 1981-NMCA-144, 97 N.M. 575, 642 P.2d 178, cert. quashed, 98 N.M. 51, 644 P.2d 1039 (1982).
Failure of indictment to refer to Subsection B does not render it invalid. State v. Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460.
VI. JURY INSTRUCTIONS.
Jury instruction for attempt to manufacture. — The jury was properly instructed that it could convict defendant of attempt to manufacture methamphetamine under the theory of accessory liability if it found, beyond a reasonable doubt, that defendant intended that the crime of manufacturing be committed, an attempt to commit the crime was committed, and defendant helped, encouraged or caused the attempt to commit the crime. State v. Brenn, 2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050, cert. denied, 2005-NMCERT-010, 138 N.M. 494, 122 P.3d 1263.
Instructing on lesser included offense. — Although possession of heroin is a lesser included offense of trafficking in heroin, it should not be instructed on when the evidence does not support the defendant's claim that possession was the highest crime which occurred. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303, cert. denied, 104 N.M. 201, 718 P.2d 1349.
Although possession is not an element of trafficking by manufacture and a jury instruction on possession was not required to be given with the instruction on trafficking by manufacture, where possession is an issue in dispute, it would be error not to give the instruction on possession. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.
Law reviews. — For note and comment, "State v. Urioste: A Prosecutor's Dream and Defendant's Nightmare," see 34 N.M. L. Rev. 517 (2004).
For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M. L. Rev. 63 (1974).
For article, "Evidence II: Evidence of Other Crimes as Proof of Intent," see 13 N.M.L. Rev. 423 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 179, 181, 187, 188, 191.
Validity and construction of statute creating presumption or inference of intent to sell from possession of specified quantity of illegal drugs, 81 A.L.R.3d 1192.
Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978.
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.
Entrapment as defense to charge of selling or supplying narcotics where government agents supplied narcotics to defendant and purchased them from him, 9 A.L.R.5th 464.
Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.
State law criminal liability of licensed physician for prescribing or dispensing drug or similar controlled substance, 13 A.L.R.5th 1.
Validity, construction, and application of state statutes prohibiting sale or possession of controlled substances within specified distance of schools, 27 A.L.R.5th 593.
Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased, 34 A.L.R.5th 125.
Sufficiency of evidence that possessor of heroin had intent to distribute it, so as to violate 21 USCS § 841(a)(1), 78 A.L.R. Fed. 413.
Sufficiency of evidence that possessor of cocaine had intent to distribute it, so as to violate 21 USCS § 841(a)(1), 80 A.L.R. Fed. 397.
Admissibility of expert evidence concerning meaning of narcotics code language in federal prosecution for narcotics dealing - modern cases, 104 A.L.R. Fed. 230.
Illegal drugs or narcotics involved in alleged offense as subject to discovery by defendant under Rule 16 of Federal Rules of Criminal Procedure, 109 A.L.R. Fed. 363.
Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosecution for possession or distribution of drugs, 109 A.L.R. Fed. 710.
Under what circumstances should total weight of mixture or substance in which detectable amount of controlled substance is incorporated be used in assessing sentence under United States sentencing guideline § 2D1.1 - post-Chapman cases, 113 A.L.R. Fed. 91.
28 C.J.S. Drugs and Narcotics § 159 et seq.
