A-1-CA-37207•May 21, 2020- State of New Mexico v. Zane Truog, No. A-1-CA-37207
May 21, 2020- State of New Mexico v. Zane Truog, No. A-1-CA-37207
A-1-CA-37207Nmctapp
Gesamter Gesetzestext
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
STATE OF NEW MEXICO, 2
Plaintiff-Appellee, 3
v. No. A-1-CA-37207 4
ZANE TRUOG, 5
Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7
Jane Shuler Gray, District Judge 8
Hector H. Balderas, Attorney General 9
Maris Veidemanis, Assistant Attorney General 10
Santa Fe, NM 11
for Appellee 12
Bennett J. Baur, Chief Public Defender 13
Allison H. Jaramillo, Assistant Appellate Defender 14
Santa Fe, NM 15
for Appellant 16
MEMORANDUM OPINION 17
MEDINA, Judge. 18
{1} Defendant Zane Truog entered a conditional no contest plea to felony 19
possession of a controlled substance (methamphetamine), in violation of NMSA 20
1978, Section 30-31-23(E) (2011, amended 2019), reserving the issue of whether the 21
district court erred in denying his motion to dismiss. We affirm. 22
Court of Appeals of New Mexico
Filed 5/21/2020 11:31 AM2
BACKGROUND 1
{2} The following facts are derived from the State’s criminal complaint. 2
Defendant was detained late one morning for outstanding warrants for trespassing 3
and assault. As the officer placed Defendant in handcuffs, he noticed Defendant was 4
holding a “plastic baggie” in his right palm containing a “white powder.” After being 5
advised of his Miranda rights, Defendant stated that “he found the baggie lying on 6
the ground and put it in his pocket[,]” and “he didn’t know what was in it.” 7
Defendant also admitted that “he . . . tried to get rid of [the baggie] when he saw the 8
police car pull up.” The substance in the baggie tested positive for 9
methamphetamine. Although the exact quantity of methamphetamine is unclear 10
from the record, a laboratory report referred to it as a “trace amount.” 11
{3} Defendant filed a motion to dismiss the possession charge, arguing that the 12
State could not prove he knew the baggie contained a controlled substance without 13
additional evidence to corroborate his knowledge. At the hearing on Defendant’s 14
motion, the State argued that there was sufficient evidence of Defendant’s 15
knowledge based on the facts as set forth in the complaint—facts to which both 16
Defendant and the State stipulated. The district court agreed and denied Defendant’s 17
motion. Defendant conditionally pleaded no contest, reserving his right to appeal the 18
denial of his motion to dismiss. This appeal followed. 193
DISCUSSION 1
{4} “[A] district court may dismiss a criminal information or indictment when 2
guilt turns on a ‘purely legal issue’ and any relevant ‘factual predicate underlying 3
the charges’ is undisputed by the state.” State v. Pacheco, 2017-NMCA-014, ¶ 2, 4
388 P.3d 307 (quoting State v. Foulenfont, 1995-NMCA-028, ¶ 6, 119 N.M. 788, 5
895 P.2d 1329); see Rule 5-601(C) NMRA (“Any defense, objection or request 6
which is capable of determination without a trial on the merits may be raised before 7
trial by motion.”). The “underlying question” the district court must answer in 8
deciding a Foulenfont motion is “whether the undisputed facts—whether stipulated 9
to by the [s]tate or alleged in the indictment or information—show that the [s]tate 10
cannot prove the elements of the charged offense at trial.” Pacheco, 2017-NMCA- 11
014, ¶ 10. Often the answer to this question turns on “whether the [s]tate could 12
reasonably assert the availability of additional evidence.” Id. (internal quotation 13
marks and citation omitted). “Whether a district court properly grants or denies a 14
defendant’s motion to dismiss an indictment on purely legal grounds presents a 15
question of law that we review de novo.” State v. Winn, 2019-NMCA-011, ¶ 9, 435 16
P.3d 1247. 17
{5} In order to convict Defendant of possession of methamphetamine, the State 18
must prove beyond a reasonable doubt that: (1) Defendant had methamphetamine in 19
his possession, and (2) Defendant knew the substance in his possession was 204
methamphetamine “or believed it to be some drug or other substance the possession 1
of which is regulated or prohibited by law.” UJI 14-3102 NMRA. Defendant 2
continues to challenge the State’s ability to prove the second element, arguing that, 3
based on the stipulated facts of the complaint, the State could not prove, as a matter 4
of law, that Defendant knew the trace amount of powder in the baggie was 5
methamphetamine because there was no corroborating evidence of his knowledge, 6
as required by State v. Reed, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113. We 7
disagree. 8
{6} In Reed, the defendant was a passenger in a car that was pulled over for a 9
broken license plate light and the driver’s failure to wear a seatbelt. Id. ¶ 3. At some 10
point during the stop, the defendant asked the driver for a pack of cigarettes, which 11
the driver gave to him. Id. ¶ 5. Although the officer noted that neither of the two men 12
were acting suspiciously, he eventually had both occupants step out of the vehicle 13
and empty their pockets. Id. ¶¶ 6-7. The defendant emptied his pockets and produced 14
a cellophane cigarette wrapper. Id. ¶ 7. The officer could not see anything on the 15
wrapper until he held it up to a streetlight, at which time he saw a trace amount of 16
what was later determined to be cocaine. Id. The chemist who tested the cocaine 17
“estimated [its] weight to be approximately two milligrams, which he equated to 18
about five or six grains of salt.” Id. ¶ 9. 195
{7} The defendant was convicted of possession of a controlled substance 1
following a jury trial. Id. ¶ 11. On appeal, the defendant argued “that mere 2
possession of a wrapper with only a trace amount of cocaine in it is not a sufficient 3
basis to prove knowledge.” Id. ¶ 15. Our Supreme Court agreed there was no 4
evidence to indicate that the defendant knew the wrapper had a powdery residue in 5
it or that the residue was cocaine. Id. ¶ 16. In so holding, the Court noted that the 6
amount of cocaine in the wrapper was so small that it was not immediately apparent 7
to the human eye, the defendant did not flee or otherwise act in a suspicious manner, 8
the officer did not find any drug paraphernalia or other drugs in the vehicle or on the 9
defendant, and the defendant did not make any admission that could support an 10
inference of knowledge. Id. The Court also rejected the state’s argument that 11
possession of the wrapper itself corroborated the defendant’s knowledge “in the 12
same way that finding trace amounts of a controlled substance on other types of drug 13
paraphernalia has been found to corroborate a defendant’s knowledge” because the 14
state failed to present evidence at trial that cellophane cigarette wrappers were 15
commonly used to transport and store crack cocaine. Id. ¶ 17 (internal quotation 16
marks and citation omitted). Because the Court “[could ]not articulate a coherent 17
rationale” for finding that the defendant knew the wrapper contained cocaine, the 18
Court reversed the defendant’s conviction. Id. ¶ 18. 196
{8} Reed is distinguishable from the instant case in several respects. First, 1
although the laboratory report referred to testing a “trace amount” of 2
methamphetamine, the complaint did not specify that the amount of 3
methamphetamine in the plastic baggie in this case was so slight that it “was not 4
immediately apparent to the human eye.” Id. ¶ 16. The complaint simply noted that 5
the officer saw a white powder in the baggie. It is also notable that Defendant did 6
not claim that he thought the baggie was empty. Instead he claimed that “he didn’t 7
know what was in it.” (Emphasis added.) Cf. id. ¶ 16 (noting that “[t]here was no 8
evidence to indicate [the defendant] knew the wrapper had a white residue in it”). A 9
jury could infer from these facts that Defendant could see the white powder in the 10
baggie. See State v. Stefani, 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d 11
659 (stating that a “jury [is] free to draw inferences [from] the facts necessary to 12
support a conviction”). Second, unlike Reed, which was decided after the 13
defendant’s trial and conviction, 1998-NMSC-030, ¶ 11, the State still had the 14
opportunity to provide evidence at trial to corroborate Defendant’s knowledge, such 15
as demonstrating that plastic baggies, like the one Defendant had, are often used to 16
package methamphetamine. See Pacheco, 2017-NMCA-014, ¶ 10 (“More often than 17
not, the question [to be decided in a Foulenfont motion] is whether the state could 18
reasonably assert the availability of additional evidence.” (alteration, internal 19
quotation marks, and citation omitted)); cf. State v. Tidey, 2018-NMCA-014, ¶¶ 3, 207
26, 409 P.3d 1019 (discussing officer’s testimony that small baggies “are commonly 1
used to package methamphetamine”). 2
{9} Lastly, in contrast to the defendant in Reed, Defendant made an admission 3
from which a jury could infer his knowledge of the contents of the baggie. Defendant 4
admitted to the officer that “he . . . tried to get rid of [the baggie] when he saw the 5
police car pull up.” A jury could reasonably infer from this admission that Defendant 6
knew the baggie contained a controlled substance such as methamphetamine. See 7
State v. Apodaca, 1994-NMSC-121, ¶ 9, 118 N.M. 762, 887 P.2d 756 8
(“Concealment may be considered as a circumstance tending to show a 9
consciousness of guilt.” (internal quotation marks and citation omitted)); State v. 10
Montoya, 1966-NMSC-224, ¶ 10, 77 N.M. 129, 419 P.2d 970 (“Knowledge, like 11
intent, is personal in its nature and may not be susceptible of proof by direct 12
evidence. It may, however, be inferred from occurrences and circumstances.”). 13
Given the corroborating evidence that could be used to demonstrate Defendant’s 14
knowledge that he possessed illegal narcotics, the district court correctly concluded 15
Reed did not mandate dismissal in this case. See State v. Wasson, 1998-NMCA-087, 16
¶ 12, 125 N.M. 656, 964 P.2d 820 (“A defendant’s knowledge or intent generally 17
presents a question of fact for a jury to decide.”). 18
CONCLUSION 19
{10} For the foregoing reasons, we affirm. 208
{11} IT IS SO ORDERED. 1
____________________________________ 2
JACQUELINE R. MEDINA, Judge 3
WE CONCUR: 4
_______________________________ 5
J. MILES HANISEE, Chief Judge 6
_______________________________ 7
BRIANA H. ZAMORA, Judge 8Was bedeutet dieser Text für Ihre Situation?
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