State v. Moreno ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,295
10 VICTOR MORENO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
13 Drew D. Tatum, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 SUTIN, Judge.
1 Defendant appeals his conviction of trafficking by possession with intent to
2 distribute. In particular, he contends that the evidence establishing possession was
3 insufficient. In our second notice, we proposed to affirm the conviction. Defendant
4 has timely responded to our proposed summary disposition. We have considered his
5 arguments and not being persuaded, we affirm.
6 Constructive possession exists when the accused has knowledge of drugs and
7 exercises control over them. State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900
8 (Ct. App. 1989). If he does not have exclusive control over the premises where the
9 drugs are found, the mere presence of the contraband is not enough to support an
10 inference of constructive possession. “Additional circumstances or incriminating
11 statements are required.” State v. Phillips, 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999
12 P.2d 421. In our second notice, we referred to those additional circumstances in
13 proposing to conclude that the evidence was sufficient to establish constructive
14 possession.
15 The cocaine was found in the room belonging to Filberto Villegas. Defendant
16 was in the room, along with three others, including Filberto. [RP 120, 158] Defendant
17 asserts that he had considerably less connection with the room than the owners of the
18 home. [MIO 7] It appears, however, that Defendant spent a good deal of time in the
19 room watching television and playing video games. [RP 37-38, 103] The cocaine was
2
1 located in a wine glass on a shelf in Filberto’s room. We pointed out that forged
2 identification cards for Defendant were also located on that shelf. [RP 38, 111-12]
3 Defendant states that there were other things on that shelf that were not in any way
4 connected to him. [MIO 3] The State was not obligated to account for and connect
5 every item found on the shelf to Defendant. See State v. Muniz, 110 N.M. 799, 801,
6 800 P.2d 734, 736 (Ct. App. 1990). Defendant’s forged identification cards were on
7 the shelf in Filberto’s room, along with the cocaine.
8 The police also found a scale containing cocaine residue under a chair near
9 where Defendant had been sitting. [RP 38, 111; State’s MIO 3] In the bedroom that
10 was identified as Defendant’s, the police found the box for the scale. [RP 110] They
11 also found a number of plastic baggies with cut corners in Defendant’s bedroom. [RP
12 109-10, 159] In Defendant’s pants pockets, police found three other plastic baggies,
13 a small amount of marijuana in a separate bag, and $299 in cash. [RP 121] There was
14 testimony that plastic baggies with corners cut off are consistent with trafficking, as
15 is the amount of cash on hand. [RP 114, 122-24]
16 The evidence was sufficient for a reasonable jury to conclude that Defendant
17 had knowledge of and exercised control over the cocaine that was found in Filberto’s
18 bedroom. See State v. Barber, 2004-NMSC-019, ¶ 28, 135 N.M. 621, 92 P.3d 633
3
1 (noting that evidence establishing direct connection between drugs and the accused
2 can create an inference of control needed for proof of possession).
3 For the reasons stated herein and in our second calendar notice, we affirm
4 Defendant’s conviction.
5 IT IS SO ORDERED.
6 __________________________________
7 JONATHAN B. SUTIN, Judge
8 WE CONCUR:
9 _________________________________
10 CYNTHIA A. FRY, Chief Judge
11 _________________________________
12 JAMES J. WECHSLER, Judge