2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 31 - Controlled Substances
Section 30-31-23 - Controlled substances; possession prohibited.

A. It is unlawful for a person intentionally to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or order of a practitioner while acting in the course of professional practice or except as otherwise authorized by the Controlled Substances Act. It is unlawful for a person intentionally to possess a controlled substance analog.

B. A person who violates this section with respect to:

(1) one ounce or less of synthetic cannabinoids is, for the first offense, guilty of a petty misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) or more than one hundred dollars ($100) and by imprisonment for not more than fifteen days, and, for the second and subsequent offenses, is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both;

(2) more than one ounce and less than eight ounces of synthetic cannabinoids is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both; or

(3) eight ounces or more of synthetic cannabinoids is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. A minor who violates this section with respect to the substances listed in this subsection is guilty of a petty misdemeanor and, notwithstanding the provisions of Sections 32A-1-5 and 32A-2-19 NMSA 1978, shall be required to perform no more than forty-eight hours of community service. For the third or subsequent violation by a minor of this section with respect to those substances, the provisions of Section 32A-2-19 NMSA 1978 shall govern punishment of the minor. As used in this subsection, "minor" means a person who is less than eighteen years of age. The provisions of this subsection apply to the following substances:

(1) synthetic cannabinoids;

(2) any of the substances listed in Paragraphs (17) through (22) of Subsection C of Section 30-31-6 NMSA 1978; or

(3) a substance added to Schedule I by a rule of the board adopted on or after March 31, 2011 if the board determines that the pharmacological effect of the substance, the risk to the public health by abuse of the substance and the potential of the substance to produce psychic or physiological dependence liability is similar to the substances described in Paragraph (1) or (2) of this subsection.

D. Except as provided in Subsections B and F of this section, and for those substances listed in Subsection E of this section, a person who violates this section with respect to any amount of any controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV is guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both.

E. A person who violates this section with respect to phencyclidine as enumerated in Schedule III or a controlled substance analog of phencyclidine; methamphetamine, its salts, isomers or salts of isomers as enumerated in Schedule II or a controlled substance analog of methamphetamine, its salts, isomers or salts of isomers; flunitrazepam, its salts, isomers or salts of isomers as enumerated in Schedule I or a controlled substance analog of flunitrazepam, including naturally occurring metabolites, its salts, isomers or salts of isomers; gamma hydroxybutyric acid and any chemical compound that is metabolically converted to gamma hydroxybutyric acid, its salts, isomers or salts of isomers as enumerated in Schedule I or a controlled substance analog of gamma hydroxybutyric acid, its salts, isomers or salts of isomers; gamma butyrolactone and any chemical compound that is metabolically converted to gamma hydroxybutyric acid, its salts, isomers or salts of isomers as enumerated in Schedule I or a controlled substance analog of gamma butyrolactone, its salts, isomers or salts of isomers; 1-4 butane diol and any chemical compound that is metabolically converted to gamma hydroxybutyric acid, its salts, isomers or salts of isomers as enumerated in Schedule I or a controlled substance analog of 1-4 butane diol, its salts, isomers or salts of isomers; or a narcotic drug enumerated in Schedule I or II or a controlled substance analog of a narcotic drug enumerated in Schedule I or II is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

F. Except for a minor as provided in Subsection C of this section, a person who violates Subsection A of this section while within a posted drug-free school zone, excluding private property residentially zoned or used primarily as a residence and excluding a person in or on a motor vehicle in transit through the posted drug-free school zone, with respect to:

(1) one ounce or less of synthetic cannabinoids is, for the first offense, guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both, and for the second or subsequent offense, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(2) more than one ounce and less than eight ounces of synthetic cannabinoids is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(3) eight ounces or more of synthetic cannabinoids is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(4) any amount of any other controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV, except phencyclidine as enumerated in Schedule III, a narcotic drug enumerated in Schedule I or II or a controlled substance analog of a narcotic drug enumerated in Schedule I or II, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(5) phencyclidine as enumerated in Schedule III, a narcotic drug enumerated in Schedule I or II, a controlled substance analog of phencyclidine or a controlled substance analog of a narcotic drug enumerated in Schedule I or II is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: 1953 Comp., § 54-11-23, enacted by Laws 1972, ch. 84, § 23; 1974, ch. 9, § 4; 1980, ch. 23, § 4; 1983, ch. 183, § 1; 1987, ch. 68, § 5; 1989, ch. 123, § 1; 1990, ch. 19, § 5; 1990, ch. 33, § 1; 2005, ch. 280, § 7; 2011, ch. 16, § 3; 2019, ch. 217, § 1; 2021, ch. 15, § 1; 2021 (1st S.S.), ch. 4, § 68.

Cross references. — For penalty for consumption or possession of alcoholic beverages on school property, see 22-5A-5 NMSA 1978.

For legal use of marijuana in research, see 26-2A-1 to 26-2A-7 NMSA 1978.

For provision authorizing conditional discharge for first possession offense, and providing for expungement of records relating to a minor so discharged, see 30-31-28 NMSA 1978.

The 2021 (1st S.S.) amendment, effective June 29, 2021, removed the possession of marijuana from the application of the section; deleted former Subsection B and redesignated former Subsections C through G as Subsections B through F, respectively; in Subsection C, Paragraph C(2), after "Paragraphs", changed "(2) through (25)" to "(17) through (22)"; in Subsection D, after "Subsections B", deleted "C" and after the next occurrence of "and", deleted "G" and added "F", and after "Subsection", changed "F" to "E"; and in Subsection F, after "Subsection", changed "D" to "C", in Paragraph F(1), after "one ounce or less of", deleted "marijuana or", in Paragraph F(2), after "less than eight ounces of", deleted "marijuana or", and in Paragraph F(3), after "eight ounces or more of", deleted "marijuana or".

The 2021 amendment, effective June 18, 2021, eliminated the fine for possession of certain controlled substances committed by minors as a first offense, capped the number of hours of community service that may be imposed for minors who have committed the crime of possession of certain controlled substances as a first offense, and made technical changes; in Paragraph B(1), after "Section", changed "3 of this 2019 act" to "31-19A-1 NMSA 1978"; and in Subsection D, after "shall be", deleted "punished by a fine not to exceed one hundred dollars ($100) or" and added "required to perform no more than".

The 2019 amendment, effective July 1, 2019, decreased penalties for possession of marijuana; added a new Subsection B and redesignated former Subsections B through D as Subsections C through E, respectively; in Subsection C, Paragraph C(1), after "one ounce or less of", deleted "marijuana or", in Paragraph C(2), after "less than eight ounces of", deleted "marijuana or", in Paragraph C(3), after "eight ounces or more of", deleted "marijuana or"; and in Subsection E, after "Except", added "as provided in Subsections B, C and G of this section, and", and after "listed in Subsection", deleted "E" and added "F".

The 2011 amendment, effective March 31, 2011, made it a crime to possess synthetic cannabinoids and added Subsection C to make it a crime for a minor to possess synthetic cannabinoids, other synthetic drugs and substances added to Schedule I by the board of pharmacy.

The 2005 amendment, effective June 17, 2005, provided in Subsection D that it is a fourth degree felony to violate this section with respect to flunitrazepam, gamma hydroxybutyric acid and gamma butyrolactone, 1-4 butane diol; added Subsections E (1) through (5) to provide penalties for violations of Subsection A of this section in posted drug-free school zones, excluding certain private residential property and motor vehicles, with respect to the listed substances.

The 1990 amendment, effective July 1, 1990, substituted "or" for "and" at the end of Paragraph (2) of Subsection B, deleted former Paragraph (4) of Subsection B pertaining to violations with respect to specific controlled substances and providing a penalty, added Subsection C, redesignated former Paragraph (5) of Subsection B as Subsection D, and rewrote the provision which read "phencyclidine as enumerated in Schedule III a narcotic drug enumerated in Schedule I or II or a controlled substance analog of phencyclidine or a controlled substance analog of a narcotic drug enumerated in Schedule I or II, is guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.".

The 1989 amendment, effective July 1, 1989, inserted "or a controlled substance analog of phencyclidine" in Subsection B(4) and "or a controlled substance analog of phencyclidine or a controlled substance analog of a narcotic drug enumerated in Schedule I or II" in Subsection B(5); and made minor stylistic changes throughout Subsection B.

I. GENERAL CONSIDERATION.

Jury unanimity as to the form of cocaine involved in a lesser included offense of possession was not required. — Where police officers found crack cocaine in defendant's vehicle and powder cocaine that belonged to defendant in the vehicle of defendant's friend; defendant was charged with one count of trafficking and one count of the lesser included offense of possession; the jury found defendant guilty of possession of cocaine; defendant claimed that there were two substances at issue and that the trial court failed to instruct the jury that any conviction of possession had to be based on the same substance considered by the jury for the trafficking offense; the state's theories of possession were based on the crack cocaine found in defendant's vehicle and the powder cocaine found in the friend's vehicle; and witnesses testified that a lab analysis does not distinguish between crack cocaine and powder cocaine and that both forms of cocaine were in quantities large enough to qualify for a count of trafficking, jury unanimity was not required as to the specific form of cocaine involved, jury unanimity was required only on the overall verdict. State v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007.

Section is within scope of state's power and is valid on its face. Yanez v. Romero, 619 F.2d 851 (10th Cir.), cert. denied, 449 U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98 (1980).

Possession of heroin deemed felony under Habitual Offender Act. — When a federal conviction is had in New Mexico upon a purchase of heroin in New Mexico, the "purchase" of heroin necessarily includes the actual or constructive "possession" of heroin, and actual or constructive possession of heroin is a felony under the laws of New Mexico for purposes of the Habitual Offender Act. State v. Montoya, 1980-NMSC-093, 94 N.M. 704, 616 P.2d 417.

Habitual offender law inapplicable. — Since the legislature intended an enhanced penalty to apply to a violation of the Controlled Substances Act it so provided within the act, the legislature did not intend that the habitual offender law was to apply to second or subsequent violations of Subsection B(5) (now D) of this section. State v. Alderete, 1975-NMCA-080, 88 N.M. 150, 538 P.2d 422.

Comparison not warranted. — Former Narcotic Drug Act (54-7-1, 1953 Comp. et seq.) was completely lacking in any legislative direction as to procedures in the event of second or subsequent convictions, and a comparison between the Narcotic Drug Act and former habitual criminal law was of no value. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214.

Due process certainty. — The language of definitional Section 30-31-20 NMSA 1978 (now 30-31-2N NMSA 1978), referring to all parts of the cannabis plant whether growing or not, coupled with Subsection B(3) of this section, is not so indefinite that men of common intelligence must guess at its meaning and scope. State v. Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Equal protection. — Fact that the Controlled Substances Act does not specifically state when weighing of marijuana is to be done does not mean that Subsection B(3) of this section, as applied to defendant convicted of possession of more than eight ounces of "green" marijuana, was a violation of his rights to equal protection since it was the possession of marijuana, on the date of the offense, which was the prohibited act and not the amount in some subsequent form suitable to a particular defendant. State v. Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Due process requirements in sentence enhancement. — To meet due process requirements of essential fairness in sentencing defendant for a second drug offense, there must be some pleading filed by the state, whether by motion or otherwise, by which defendant is given notice of the state's charges, and defendant must be given an opportunity to be heard on the charges before an increased penalty can be imposed. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214.

Title constitutionally adequate. — Sections 30-31-20 to 30-31-25 NMSA 1978, which define unlawful activities and provide penalties therefor, are not unconstitutional on the grounds that "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.

Standing to challenge section. — Defendant's contention that this section violated his constitutional rights because he was a narcotic addict, where there was no evidence that he was an addict, was without merit. State v. Jaramillo, 1975-NMCA-091, 88 N.M. 179, 538 P.2d 1201.

Marijuana use not intrinsic part of religion. — Where the evidence shows that defendant's belief was derived from defendant's personal views of the bible, and those views under the evidence are no more than that the use and distribution of marijuana was permitted because marijuana is a gift from God, such a personal use does not amount to an intrinsic part of a religion. State v. Brashear, 1979-NMCA-027, 92 N.M. 622, 593 P.2d 63.

Possession of narcotics, not addiction can be subject of prosecution. — Addiction is a disease which cannot be the subject of prosecution under the eighth and fourteenth amendments of the United States constitution: possession of narcotics as a crime is valid and distinguishable. Yanez v. Romero, 619 F.2d 851 (10th Cir.), cert. denied, 449 U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98 (1980).

Legal to search defendant admitting "dope" possession. — Once the defendant voluntarily made the statement that there was "dope" in his pocket, a police officer had probable cause to believe that a crime was being committed, specifically, possession of a controlled substance. This provided a proper legal foundation for both a full search and the actual arrest of the defendant. State v. Blakely, 1993-NMCA-053, 115 N.M. 466, 853 P.2d 168, cert. denied, 115 N.M. 535, 854 P.2d 362.

II. ELEMENTS OF POSSESSION.

Possession. — Mere proximity to illegal drugs, mere presence on the property where they are located, or mere association with persons who do control them, without more, is insufficient to support a finding of possession. United States v. Espinosa, 771 F.2d 1382 (10th Cir.), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L. Ed. 2d 561 (1985).

Possession and tampering distinguished. — Possession of a controlled substance requires proof defendant knew or believed it was cocaine or some other substance that is regulated, which is not required to prove tampering, while tampering with evidence requires proof defendant intended to prevent the apprehension, prosecution or conviction of herself or others, which is not required to prove possession. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Possession of a controlled substance can be committed without tampering with evidence. Conversely, tampering with evidence, even if the evidence is illegal drugs, can be committed without possessing the drugs. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Prohibition of "use" not vague. — Former section prohibiting "unlawful use" of marijuana was not unconstitutionally vague, since all use of marijuana not falling within a stated exception was made unlawful. State v. Covens, 1971-NMCA-141, 83 N.M. 175, 489 P.2d 888 (decided under prior law).

Meaning of "eight ounces". — Weight of eight ounces mentioned in Subsection B(3) of this section means the weight of the plant, or the plant's derivative products, weighed in the form seized, whether that form be the green plant, the dried plant or the various products which may be derived from the plant. State v. Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Intent required. — Under 54-5-16, 1953 Comp. (now repealed), an intent to possess anhalonium (peyote) was required for conviction. State v. Pedro, 1971-NMCA-145, 83 N.M. 212, 490 P.2d 470 (decided under prior law, statute repealed).

Locus of offense jurisdictional. — Since state in prosecution for unlawful use of heroin failed to establish where defendant used the narcotic, an essential element of the offense charged, this jurisdictional error would be raised sua sponte by the appellate court and defendant's conviction reversed for failure of proof. State v. Losolla, 1972-NMCA-085, 84 N.M. 151, 500 P.2d 436.

Possession coupled with knowledge. — The state must prove that defendant had physical or constructive possession, coupled with knowledge of the presence and narcotic character of the substance possessed. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975); State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649; State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411; State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471; State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, sub nom. State v. Felix, 81 N.M. 588, 470 P.2d 309 (1970).

Possession means care, control and management on the occasion in question. State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471; State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, sub nom. State v. Felix, 81 N.M. 588, 470 P.2d 309 (1970).

Constructive possession defined. — Constructive possession exists when the accused has knowledge of the presence of the narcotic and control over it. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975); State v. Montoya, 1973-NMCA-060, 85 N.M. 126, 509 P.2d 893.

Exclusive possession is not required to support a conviction. State v. Favela, 1968-NMCA-065, 79 N.M. 490, 444 P.2d 1001.

III. DOUBLE JEOPARDY.

Possession of methamphetamine and possession of drug paraphernalia . — The legislature did not intend to punish a defendant for possession of a controlled substance and possession of paraphernalia when the paraphernalia consists of only a container that is storing a personal supply of the charged controlled substance and where the defendant was convicted of possession of methamphetamine and possession of drug paraphernalia based on the possession of a baggie that held the methamphetamine, the defendant's conviction of possession of drug paraphernalia violated double jeopardy. State v. Almeida, 2008-NMCA-068, 144 N.M. 235, 185 P.3d 1085.

Lesser included offense. — The separate crimes of possession of methamphetamine and possession of methamphetamine with intent to distribute apply in the alternative when based on a single act of possession. State v. Quick, 2009-NMSC-015, 146 N.M. 80, 206 P.3d 985.

Possession of methamphetamine is a lesser included charge of possession with intent to distribute methamphetamine and a conviction of both charges when defendant's conduct was unitary is a violation of double jeopardy. State v. Lopez, 2008-NMCA-002, 143 N.M. 274, 175 P.3d 942, cert. denied, 2008-NMCERT-007, 144 N.M. 593, 189 P.3d 1215.

Possession is lesser offense necessarily included in distribution of marijuana. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Distribution prosecution barred by conviction of possession. — The possession of marijuana was a lesser offense necessarily included in the greater offense of distribution of marijuana, and since the defendant was convicted of the lesser offense, the principles of double jeopardy barred the subsequent prosecution of the greater offense. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Retrial for possession barred. — Since two counts were charged in an indictment, one for illegal possession of marijuana and the other for possession with intent to sell, an instruction by the court that the jury was to disregard the possession count if it found defendant guilty of the latter offense operated as an acquittal on the possession count and prevented retrial of this issue when the verdict on possession with intent to distribute was overturned. State v. Moreno, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594.

No double jeopardy violation. — Convictions for possession of cocaine and tampering with evidence did not violate defendant's double jeopardy rights. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

IV. EVIDENCE AND PROOF.

Authentication of substance as cocaine by lay testimony. — Where defendant was charged with trafficking and the lesser included offense of possession of cocaine; the state failed to present a laboratory analysis authenticating the substance found in defendant's vehicle as crack cocaine; when arrested, defendant raised the inference that the substance was an illegal narcotic by telling the arresting police officers that defendant was the user and that the substance was for defendant's personal use; three officers testified that the substance field tested for the presence of cocaine; one officer testified that the result of the test was positive; and two officers testified that based on their experience and training, the substance had the appearance of crack cocaine, the officers' opinions, combined with the actions and statements of defendant, provided sufficient evidence to support the admissibility of the crack cocaine into evidence. State v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007.

Field drug test. — The state has the burden to establish the validity of the scientific principles on which a field drug test is based and its scientific reliability when the state elects to rely on a field test to prove the identity of contraband. The testimony by a law enforcement officer will not, without more, be sufficient to support admission of the results, when the officer cannot explain the scientific principles that the test uses, the percentage of false positives or negatives that the test will produce, or the factors that may produce those false results. The state can avoid admissibility problems altogether by using a competent laboratory to identify the substance at issue. State v. Morales, 2002-NMCA-052, 132 N.M. 146, 45 P.3d 406, cert. denied, 132 N.M. 193, 46 P.3d 100.

A. IN GENERAL.

Testimony concerning a forensic laboratory report. — Where the court admitted a forensic laboratory report that a substance was cocaine; the report was admitted into evidence through the testimony of a forensic chemist who did not conduct the tests underlying the report; the witness's testimony was an explanation regarding how the test was performed and the witness's approval of the testing chemist's results; there was nothing in the witness's testimony indicating that the witness relied on the witness's own analysis to arrive at the witness's own conclusions; the only other evidence that the substance was cocaine was the testimony of a police officer who performed a field test on the substance; and the state failed to prove the scientific reliability of the field test, the admission of the laboratory report and the witness's testimony regarding the testing chemist's opinion was error, the error was not harmless, and the error violated defendant's right of confrontation. State v. Delgado, 2010-NMCA-078, 148 N.M. 870, 242 P.3d 437, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611, on remand of 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert granted, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Chain of custody. — Where, during a search incident to arrest, the arresting police officer found on defendant a plastic "bindle" containing a white crystalline substance which the officer recognized as methamphetamine; the arresting officer observed another officer perform a presumptive field test on the substance; the arresting officer took the substance into evidence and transferred the substance to an evidence technician who sent the substance to the sate laboratory; an analyst in the drug analysis unit obtained the evidence from the laboratory's evidence custodian; the analyst performed two tests on the evidence and concluded that the substance was methamphetamine; the analyst sealed the evidence so that it would be apparent if any one tried to tamper with or alter it and returned the evidence to the evidence custodian, there was sufficient evidence to support the verdict that the substance seized from defendant was the same substance that was tested by the state laboratory and determined to be methamphetamine. State v. Rodriguez, 2009-NMCA-090, 146 N.M. 824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

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.

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.

Evidence of possession. — When an accused is not in exclusive possession of the places in which an illegal substance is found, the state is required to prove that the accused knew the substance was there and that the accused exercised control over it. State v. Morales, 2002-NMCA-052, 132 N.M. 146, 45 P.3d 406, cert. denied, 132 N.M. 193, 46 P.3d 100.

Direct proof unnecessary. — Proof of possession with knowledge of narcotic character need not be by direct or uncontradicted evidence. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210, overruled on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Trace amount not sufficient to infer knowledge. — The presence of a trace amount of cocaine in a cellophane cigarette wrapper carried in defendant's pocket was not, by itself, sufficient to establish that defendant had knowledge of the substance or that the substance was cocaine. State v. Reed, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113.

Conduct permitting inference of guilt. — Evidence sufficient to support a violation of this section must be such as discloses some conduct, declarations or actions on the part of the accused from which the fact finder may fairly infer and which is sufficient to satisfy it beyond a reasonable doubt of knowledge in the accused of the presence and nature of the narcotics. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248; State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210, overruled on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Proving knowing possession. — To show knowing possession of narcotics, the conduct and behavior of the parties, their admissions or contradictory statements and explanations are frequently sufficient; possession and knowledge that object is a narcotic drug can also be proven circumstantially. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Right to control. — An accused has constructive possession when he maintains control or a right to control the contraband. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411.

Power to produce or dispose is evidence of control. State v. Montoya, 1973-NMCA-060, 85 N.M. 126, 509 P.2d 893.

Insufficiency of positive drug test by itself. — The common law rule in New Mexico requires additional proof of an intentional or knowing prior possession corroborating a positive drug test before a defendant can be charged and convicted of possession of a controlled substance; while a positive drug test might be circumstantial evidence of possession, it is insufficient, standing alone, to convict for that crime. State v. McCoy, 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1.

No burden on state to negate plant maturity. — In prosecution for possession, the state was not required to expressly prove that substance identified as marijuana was not the mature stalk. State v. Everidge, 1967-NMSC-035, 77 N.M. 505, 424 P.2d 787, cert. denied, sub nom. Greene v. United States, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Failure to prove plant maturity is fatal. — Since the state's expert witness was unable to say whether the substance he tested was cannabis indica or cannabis sativa L., and could only identify it as mature stalk of some kind of cannabis, possession of which mature stalk did not constitute a violation of the statute under which the state had elected to proceed, defendant's conviction for possession of marijuana would be reversed. State v. Benavidez, 1962-NMSC-137, 71 N.M. 19, 375 P.2d 333 (decided under prior law).

Evidence of predisposition. — In view of evidence that defendant, a heroin addict, had been brought off methadone rapidly when a methadone maintenance program was closed, that he encountered a waiting requirement for entry into a different methadone program, during which time he contacted his former heroin supplier (now an informer) who supplied him with heroin, and that defendant being utterly without funds, the two arranged a marijuana transaction during the course of which defendant was arrested, subsequently being convicted of unlawful possession, the jury could reasonably have believed that the parties pooled their thoughts to plan a criminal enterprise in which the defendant was predisposed to participate. State v. Fiechter, 1976-NMSC-006, 89 N.M. 74, 547 P.2d 557.

Entrapment for the jury. — Evidence that defendant had previously been involved in "hauling" marijuana, that he had furnished informer with LSD in the past and that he himself had taken drugs went toward defendant's predisposition to commit the crime and bore on the credibility of his testimony that representations by informer involving thereto and violence were the inducing cause of the crime (possession of LSD); and since there were conflicts on the entrapment issue, the trial court properly refused to rule there was entrapment as a matter of law. State v. Sena, 1971-NMCA-044, 82 N.M. 513, 484 P.2d 355.

"Ingestion" not possession. — The mere presence of drugs in the urine or bloodstream does not constitute possession. State v. McCoy, 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1.

To convict the defendant of possession of cocaine that he had ingested, it is necessary to prove that he voluntarily and knowingly ingested the drug in New Mexico. State v. Franks, 1994-NMCA-097, 119 N.M. 174, 889 P.2d 209.

Possession through ingestion. — The defendant's statement that he took cocaine was probative of the offense since the fact that he thought that cocaine was present in his body tended to establish that: (1) cocaine was present in his body, (2) he knew that it was cocaine when he ingested it, and (3) the ingestion was voluntary. State v. Franks, 1994-NMCA-097, 119 N.M. 174, 889 P.2d 209.

Evidence sufficient for conviction includes any clearly identifiable amount of controlled substances. State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113, cert. denied, 117 N.M. 744, 877 P.2d 44.

Evidence not inherently improbable. — Testimony in prosecution for unlawful sale and possession of marijuana was not inherently improbable despite fact that defendant was claimed to have insisted on delivering the cigarettes in question in the restroom where only he and undercover officer were present, yet afterwards supposedly received the money for the transaction and discussed other possible dealings in a car in the presence of several other persons. State v. Soliz, 1969-NMCA-043, 80 N.M. 297, 454 P.2d 779.

Prejudicial hearsay. — Testimony by undercover officer that defendant's name had been called to his attention by local officers as a person allegedly dealing in marijuana was clearly hearsay and clearly prejudicial and necessitated reversal of her conviction for possession of marijuana. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991.

B. CIRCUMSTANTIAL EVIDENCE.

Inference of possession permissible from exclusive possession. — When one has exclusive possession of a home or apartment in which narcotics are found, it may be inferred, even in the absence of other incriminating evidence, that such person knew of the presence of the narcotics and had control of them. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Nonexclusive possession distinguished. — When a person is not in exclusive possession of premises, it may not be inferred that he knew of the presence of the marijuana (or narcotics) or had control over same unless there are some other incriminating circumstances or statements tending to buttress such an inference. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part on other grounds, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971; State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085; State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

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.

Possession of agent. — An accused has constructive possession of narcotics found in the physical possession of his agent or any other person when the defendant has the immediate right to exercise dominion and control over the narcotics. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411.

Constructive possession shown. — Where police officers found crack cocaine in defendant's vehicle and powder cocaine in the vehicle of defendant's friend; and defendant's friend testified that the powder cocaine belonged to defendant and that the friend had agreed to transport the powder cocaine to defendant's house and to take the blame if they were caught, the evidence was sufficient to prove that defendant constructively possessed the powder cocaine found in the vehicle of defendant's friend because defendant knew or believed that the substance was cocaine and defendant knew where the cocaine was located and exercised control over it. State v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007.

Finding of numerous unused tinfoils inside the house occupied by defendant and his wife and fact that on the way to the police station, when defendant's wife remarked that the police got everything that "we had," defendant told his wife to keep her mouth shut, were sufficient to sustain the inference that defendant constructively possessed the heroin that was found outside. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.

A showing that heroin was found in the bathroom of the master bedroom usually occupied by defendant and his wife, that defendant was a former heroin addict who for the last three years had been undergoing methadone treatments and according to his own testimony took methadone daily and that the wife claimed to have never seen heroin and other items before and not to know what they were used for, constituted substantial evidence of defendant's constructive knowledge and possession of the heroin. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Evidence was sufficient to find that defendant constructively possessed an eyeglass case left under patrol car seat by his wife, knowing it contained heroin, where it took defendant three blocks to stop his car for the police, various parts of the fix kit were found in the car trunk and in the eyeglass case, including a syringe with defendant's fingerprint, his wife's purse held squares of tinfoil and there were fresh needle marks on defendant's arm. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411.

There was sufficient evidence to show constructive possession of controlled substance with knowledge thereof where defendant was in possession of a motel room for six days before a legal search of that room revealed heroin. State v. Montoya, 1973-NMCA-060, 85 N.M. 126, 509 P.2d 893.

Constructive possession of cocaine was shown based on evidence that the defendant owned and had control of the car she was traveling in with her daughter, the daughter had cocaine concealed on her person, the daughter was easily influenced to do wrong, and the defendant insisted that police arrest her instead of her daughter. State v. Hernandez, 1997-NMCA-006, 122 N.M. 809, 932 P.2d 499.

Even though defendant did not have exclusive possession of the bedroom where drugs and paraphernalia were discovered, physical evidence and her own incriminating statements rationally supported the necessary inferences to find her guilty of criminal possession. State v. Phillips, 2000-NMCA-028, 128 N.M. 777, 999 P.2d 421, cert. denied, 128 N.M. 689, 997 P.2d 821.

C. SUFFICIENCY OF EVIDENCE.

Substantial evidence of possession. — Where the defendant was bent down behind a fence; when police officers approached, the defendant stood up and walked toward a shed; the defendant did not stop when the officers called out to the defendant; the defendant's body movements appeared as if the defendant had disposed of something; the defendant then walked back to the officers; the officers found a bag of cocaine in front of the shed; and when the cocaine was found, the defendant placed the defendant's hands behind the defendant's back and turned around without any request by the officers, there was sufficient evidence that the defendant had consecutive possession of the cocaine. State v. Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert. granted, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43, remanded, 2010-NMCA-078, 148 N.M. 870, 242 P.3d 437, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Place of possession. — Defendant's conviction for possession of cocaine warranted reversal since there was insufficient evidence to prove that the drugs were actually possessed and ingested in New Mexico, although the defendant's urine tested positive for cocaine. State v. McCoy, 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1.

Sufficient evidence. — Where police officers testified that they found a glass pipe containing a white substance in the center console of the vehicle defendant was driving and subsequent forensic testing revealed that the substance was methamphetamine, the circumstantial evidence was sufficient to establish that defendant possessed or constructively possessed the methamphetamine and the pipe and to permit the jury to infer that defendant knew that the substance was methamphetamine and that defendant intended to use the pipe to inhale methamphetamine. State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257.

Substantial evidence of possession. — Evidence that a voice identified as female defendant's responded to the officers' knock, that thereafter running was heard from the front portion of the trailer to the vicinity of the trailer in which the bathrooms were located, that the toilet was flushed and heroin was recovered therefrom immediately thereafter, and that upon entry the officers found the defendant standing in a location consistent with her having been the person who flushed the toilet, along with evidence that the other occupants of the trailer were infants and young children, two sleeping adults and another adult in the living room, was substantial and supported defendant's conviction for possession of heroin. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

Sufficient evidence of possession of controlled substances. — Where defendant was arrested for driving on a revoked license, and where the arresting officer found on defendant's person ninety-seven empty small baggies and a straw with a burnt end, items which are commonly used to package methamphetamine, a small plastic bag with a white powdery substance, later identified as methamphetamine, and found in defendant's vehicle three additional baggies that contained what was identified in a field test as methamphetamine, there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt of possession of methamphetamine. State v. Tidey, 2018-NMCA-014, cert. denied.

Sufficient evidence of possession of methamphetamine. — Evidence that the arresting officer discovered methamphetamine in a pack of cigarettes removed from defendant's shirt pocket was sufficient to support defendant's conviction for possession of controlled substances. State v. Howl, 2016-NMCA-084, cert. denied.

Sufficiency of evidence. — Evidence that defendant knowingly transferred a forged prescription was sufficient to sustain a conviction for knowingly possessing the drug involved. State v. Nation, 1973-NMCA-087, 85 N.M. 291, 511 P.2d 777.

Appellant's acts of purchasing the cigarettes, receiving actual delivery thereof and then distributing them amply supported the conclusion that he had marijuana in his possession, as such term was defined in the instructions. State v. Romero, 1968-NMCA-078, 79 N.M. 522, 445 P.2d 587.

Sufficient evidence of joint dominion and control of drugs and drug paraphernalia. — Where defendant was charged with homicide by vehicle (driving while under the influence of drugs), causing great bodily injury (driving while under the influence of drugs), possession of drug paraphernalia, and possession of marijuana following a car collision in which defendant was the driver and where defendant's passenger, the owner of the vehicle that defendant was driving, was killed and another driver was severely injured, and where investigators discovered marijuana and drug paraphernalia in the vehicle defendant was driving, and where defendant implied that the evidence was equally consistent with his passenger possessing the marijuana or others having deposited the marijuana in the vehicle, there was sufficient evidence to permit a rational jury to conclude beyond a reasonable doubt that defendant possessed the marijuana based on evidence that the marijuana and drug paraphernalia were in a location subject to the joint dominion and control of defendant and his passenger, and witness testimony that the marijuana leaves and drug paraphernalia were in the vehicle prior to police arriving on the scene. State v. Martinez, 2020-NMCA-043, cert. denied.

Evidence of possession insufficient. — Evidence that one defendant was in bed asleep when the officers entered the trailer, that plastic baggie tops were found on top of the commode in the bathroom off the bedroom where he was sleeping and that after his arrest defendant asked another man in the trailer to do him an unidentified favor was insufficient to sustain his conviction for possession of heroin flushed down a toilet by someone in the trailer. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

Since there was no evidence that female defendant had any control over the keys to the car in which she was riding or to the footlockers in its trunk, or that she had any knowledge whatsoever of the contents of the car trunk, it was held that the evidence relied upon to sustain her conviction was totally insubstantial. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part on other grounds, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971.

Where the only evidence concerning cocaine was that some was found in a vial in a box on the coffee table of the main room of defendants' house, and there was no testimony that any of the defendants knew of the contents of the vial or of its character, nor evidence that any of the defendants had the power to produce or dispose of the narcotic in question, nor any evidence that the defendants had any common purpose in the cocaine which was found, the trial court erred in finding that there was sufficient evidence to convict the defendants for possession of cocaine. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975).

Insufficient evidence that substance was synthetic cannabinoid. — Where defendant was arrested and charged with a single count of possession of synthetic cannabinoids, and where defendant claimed that there was insufficient evidence to support his conviction because the state failed to meet its burden of proving that the substance in his possession was a synthetic cannabinoid, there was insufficient evidence to support defendant's conviction where the state failed to introduce evidence that scientific testing was ever done to determine what chemicals were present in or applied to the substance found in defendant's possession, and therefore could not prove that the substance contained a chemical that falls either into one of the classes of chemicals listed in a statute or regulation or within the neurochemical definition of synthetic cannabinoid. State v. Arias, 2018-NMCA-057.

Ignorance of nature of substance. — Evidence that defendant, an Arapahoe Indian, after treatment for illness by an "Indian doctor," was given "medicine" to carry on his person as "protection," which medicine, unknown to defendant, was anhalonium (or peyote), could not support a conviction for possession of the substance. State v. Pedro, 1971-NMCA-145, 83 N.M. 212, 490 P.2d 470.

Knowledge not shown. — A degree of furtiveness on the part of juveniles in smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to infer that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Testimony of a single witness was sufficient evidence for a conviction of unlawful possession and sale of marijuana. State v. Soliz, 1969-NMCA-043, 80 N.M. 297, 454 P.2d 779.

V. INDICTMENT AND INFORMATION.

Information and proof not variant. — Information charging defendant with unlawful possession of "certain narcotic drugs, to-wit, cannabis indica, also known as marijuana" was not at fatal variance with proof of possession of leaves and seeds of "marijuana," despite fact that there was no testimony identifying the substance by true botanical name or referring to its chemical breakdown or grouping. State v. Romero, 1964-NMSC-245, 74 N.M. 642, 397 P.2d 26.

Law reviews. — For note and comment, "State v. Urioste: A Prosecutor's Dream and Defender'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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 179, 181, 187, 188, 191.

Conviction of possession of illicit drugs found in premises of which defendant was not in exclusive possession, 56 A.L.R.3d 948.

Conviction of possession of illicit drugs found in automobile of which defendant was not sole occupant, 57 A.L.R.3d 1319.

Sufficiency of prosecution proof that substance defendant is charged with possessing or selling, or otherwise unlawfully dealing in, is marijuana, 75 A.L.R.3d 717.

Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978.

Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.

Minimum quanity of drug required to support claim that defendant is guilty of criminal "possession" of drug under state law, 4 A.L.R.5th 1.

Sufficiency of random sampling of drug or contraband to establish jurisdictional amount required for conviction, 45 A.L.R.5th 1.

Drug abuse: what constitutes illegal constructive possession under 21 USCS § 841(a)(1), prohibiting possession of a controlled substance with intent to manufacture, distribute, or dispense the same, 87 A.L.R. Fed. 309.

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 § 166 et seq.