June 15, 2020- State of New Mexico v. Eugene Albert Gutierrez, No. A-1-CA-38085

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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-38085	4
EUGENE ALBERT GUTIERREZ,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Drew D. Tatum, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
Gregory B. Dawkins, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant, Eugene Gutierrez, appeals his convictions for trafficking, contrary	18
to NMSA 1978, Section 30-31-20 (2006). We issued a notice of proposed summary	19
disposition proposing to affirm, and Defendant has responded with a memorandum	20
in opposition and motion to amend the docketing statement. We remain unpersuaded	21
Court of Appeals of New Mexico
Filed 6/15/2020 8:04 AM

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that our initial proposed disposition was incorrect. Additionally, Defendant has not	1
raised any viable issues in his motion to amend the docketing statement. We therefore	2
deny the motion to amend and affirm.	3
{2} 	Defendant continues to argue that the evidence was insufficient to support his	4
conviction for trafficking heroin. [MIO 19-23] “The test for sufficiency of the	5
evidence is whether substantial evidence of either a direct or circumstantial nature	6
exists to support a verdict of guilt beyond a reasonable doubt with respect to every	7
element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M.	8
94, 140 P.3d 515 (internal quotation marks and citation omitted). We view the	9
evidence “in the light most favorable to the guilty verdict, indulging all reasonable	10
inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.	11
Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “We will not	12
substitute our judgment for that of the factfinder, nor will we reweigh the evidence.”	13
State v. Trujillo, 2012-NMCA-092, ¶ 5, 287 P.3d 344.	14
{3} 	In order to convict Defendant of trafficking heroin, the State was required to	15
prove (1) Defendant had heroin in his possession, (2) Defendant knew it was heroin,	16
and (3) Defendant intended to transfer it to another. [RP 102, 104] See State v. Smith,	17
1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the	18
law of the case against which the sufficiency of the evidence is to be measured.”); see	19

3
also UJI 14-3104 NMRA; § 30-31-20 (A)(3) (setting out the elements of trafficking	1
by possession with intent to distribute).	2
{4} 	In his memorandum in opposition, Defendant argues that the evidence was	3
insufficient to support his conviction for trafficking heroin because the State failed to	4
prove that the 4.89 grams of heroin recovered from Defendant’s vehicle was	5
inconsistent with personal use, and therefore, intent to transfer the heroin cannot be	6
inferred. [MIO 20-21] See State v. Curry, 1988-NMCA-031, ¶ 7, 107 N.M. 133, 753	7
P.2d 1321 (“Intent to distribute may be inferred when the amount of a controlled	8
substance possessed is inconsistent with personal use.”). Defendant relies on this	9
Court’s opinion in State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246,	10
in which we held that the jury could not infer the defendant’s intent to distribute the	11
55.53 grams of cocaine based on the amount alone because there was no evidence of	12
the concentration of the drug or how long it would take a single user to consume that	13
quantity. Id. ¶¶ 8, 22-23.	14
{5} 	We do not find Becerra apposite, however, because in this case, the State did	15
not rely on the quantity of heroin to prove Defendant’s intent to transfer. Rather, the	16
State introduced evidence separate from the amount of heroin supporting an inference	17
that Defendant intended to transfer the drugs in his possession. Officer Hernandez	18
testified that she recovered materials commonly used in the packaging and sale of	19
narcotics from the bag in Defendant’s vehicle containing the methamphetamine and	20

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heroin, including two scales, spoons used to measure drugs, and plastic baggies.[RP	1
127-134] This evidence, apart from the quantity of heroin, was sufficient to allow the	2
jury to infer Defendant’s intent to transfer. See State v. Zamora, 2005-NMCA-039,	3
¶ 24, 137 N.M. 301, 110 P.3d 517 (explaining that testimony presented regarding the	4
quantity of crack cocaine, packaging, and scales was sufficient to establish trafficking	5
by possession with intent to distribute); State v. Hubbard, 1992-NMCA-014, ¶ 9, 113	6
N.M. 538, 828 P.2d 971 (stating that intent to distribute a controlled substance may	7
be inferred by surrounding facts and circumstances including the manner of packaging	8
of the controlled substance); see also State v. Brenn, 2005-NMCA-121, ¶ 24, 138	9
N.M. 451, 121 P.3d 1050 (“Intent is usually established by circumstantial evidence.”).	10
{6} 	Defendant argues that the evidence of the scales, plastic baggies, and the spoons	11
are only relevant to whether Defendant trafficked methamphetamine because they	12
were found in the same bag as the methamphetamine, while the heroin was found in	13
a separate package. Defendant argues that the only logical conclusion from this is that	14
the methamphetamine was for trafficking while the heroin was for personal use.	15
{7} 	We disagree. Officer Hernandez’ testimony was that the heroin was discovered	16
in a separate bag within the larger bag containing the methamphetamine, scales,	17
spoons, and baggies. We do not believe that the fact that the heroin was kept in a	18
separate container within the larger bag compels a determination that the heroin was	19
for personal use. Moreover, two scales and multiple spoons were recovered along with	20

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the narcotics, and the jury could reasonably infer that the duplicate items were	1
intended for aiding in the sale of the methamphetamine and heroin, respectively. See	2
Cunningham, 2000-NMSC-009, ¶ 26 (“In reviewing the sufficiency of the evidence,	3
we must view the evidence in the light most favorable to the guilty verdict, indulging	4
all reasonable inferences and resolving all conflicts in the evidence in favor of the	5
verdict.”).	6
{8} 	Defendant next argues, pursuant to a motion to amend the docketing statement,	7
that his right to be free from double jeopardy was violated and that he received	8
ineffective assistance of counsel. See Rule 12-208(F) NMRA (providing that the Court	9
may allow an amendment of the docketing statement upon a showing of good cause).	10
For the following reasons, we deny Defendant’s motion to amend, as the issues raised	11
are not viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d	12
91 (stating that an essential requirement for allowance of a motion to amend the	13
docketing statement is that the issue raised is viable), overruled on other grounds by	14
State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730. We consider	15
each argument in turn.	16
{9} 	Defendant argues that his right to be free from double jeopardy was violated by	17
his two convictions under Section 30-31-20(A) (trafficking of controlled substances).	18
Specifically, Defendant argues that his singular act of possessing both heroin and	19
methamphetamine cannot give rise two charges. [MIO 24]	20

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{10} 	We disagree. “Double Jeopardy protects against multiple punishments for the	1
same offense.” State v. Silvas, 2015-NMSC-006, ¶ 8, 343 P.3d 616. “A double	2
jeopardy challenge is a constitutional question of law which we review de novo.”	3
State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Defendant’s claim raises a “unit	4
of prosecution” issue. See State v. Melendrez, 2014-NMCA-062, ¶ 6, 326 P.3d 1126	5
(stating that a “unit of prosecution” double jeopardy case is one in which the	6
defendant is charged with multiple violations of the same statute).	7
{11} 	In considering a unit of prosecution claim, we first examine “whether the	8
[L]egislature intended punishment for the entire course of conduct or for each discrete	9
act.” Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. “To	10
determine the Legislature’s intent with respect to the unit of prosecution for a criminal	11
offense, . . . we review the statutory language for guidance on the unit of prosecution.”	12
State v. Ramirez, 2018-NMSC-003, ¶ 47, 409 P.3d 902 (internal quotation marks and	13
citations omitted). “The plain language of the statute is the primary indicator of	14
legislative intent.” State v. Olsson, 2014-NMSC-012, ¶ 18, 324 P.3d 1230. “If the unit	15
of prosecution is clear from the language of the statute, the inquiry is complete.”	16
Swick, 2012-NMSC-018, ¶ 33.	17
{12} 	Here, we believe that the unit of prosecution is clear from the language of the	18
statute. Section 30-31-20(A)(3)(a) prohibits the trafficking of “a controlled substance	19
enumerated in Schedule I or II that is a narcotic drug” and so expressed the prohibited	20

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act using a singular noun. 	See Ramirez, 2018-NMSC-003, ¶ 53 (“It is well	1
established—so 	much 	so 	that 	the 	proposition 	is 	repeatedly 	expressed 	in	2
non-precedential opinions—that where a statute prohibits the doing of some act to a	3
victim specified by a singular noun, ‘a person’ for example, then ‘the person’ is the	4
unit of prosecution.”). Cf. State v. Tidey, 2018-NMCA-014, ¶ 10, 409 P.3d 1019	5
(stating that there is “no clear indication of a unit-of-prosecution in the statute” when	6
“paraphernalia” could be singular or plural in statute prohibiting possession of	7
paraphernalia). We also have non-precedential authority in which we determined that	8
the Legislature has defined the unit of prosecution in Section 30-31-20(A)(3) as the	9
number of different controlled substances possessed. See State v. Chavez, No.	10
A-1-CA-35504, mem. op. ¶ 14 (N.M. Ct. App. Nov. 26, 2018) (non-precendential);	11
see also State v. Borja-Guzman, 1996-NMCA-025, ¶ 13, 121 N.M. 401, 912 P.2d 277	12
(analyzing Section 30-31-20(A) and concluding that “[t]he various means of	13
trafficking . . . evinces a legislative intent to authorize prosecution and punishment for	14
each separate transfer of a controlled substance”).	15
{13} 	We therefore conclude that Defendant’s right to be free from double jeopardy	16
was not violated by his separate convictions under Section 30-31-20(A).	17
{14} 	Lastly, Defendant argues that he received ineffective assistance of counsel in	18
this matter when his attorney failed to file a motion to suppress. Defendant argues that	19
his attorney should have sought suppression of the evidence recovered from his	20

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vehicle on the basis that police did not have reasonable suspicion to stop him. [MIO	1
8-18] “A prima facie case of ineffective assistance of counsel requires that a defendant	2
establish that: (1) counsel’s performance fell below that of a reasonably competent	3
attorney; (2) no plausible, rational strategy or tactic explains counsel’s conduct; and	4
(3) counsel’s apparent failings were prejudicial to the defense.” State v. Cordova,	5
2014-NMCA-081, ¶ 9, 331 P.3d 980 (internal quotation marks and citation omitted).	6
“If facts necessary to a full determination are not part of the record, an ineffective	7
assistance claim is more properly brought through a habeas corpus petition.” State v.	8
Crocco, 2014-NMSC-016, ¶ 14, 327 P.3d 1068.	9
{15} 	The record indicates that Defendant was stopped because his vehicle matched	10
the description of a vehicle involved in a drive-by shooting a month earlier. [RP 4]	11
Defendant argues that this was akin to a BOLO (be on the lookout) advisory, but that	12
reliance on a BOLO was insufficient to support reasonable suspicion because the	13
BOLO was over a month old and only supplied the color, make, and model of the	14
vehicle. [MIO 15]	15
{16} 	Defendant relies on the description of events contained in the affidavit for arrest	16
warrant and posits that the information contained therein constitutes the entirety of the	17
information known to the officer regarding similarities between Defendant’s vehicle	18
and the vehicle involved in the shooting. We first note that, according to the affidavit	19
for arrest warrant, the officer also observed that Defendant’s vehicle had a missing	20

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tailgate, which was also a feature of the wanted vehicle. [RP 4] Accordingly, we reject	1
Defendant’s argument that the officer relied solely on the make, model, and color of	2
the vehicle in stopping Defendant in relation to the BOLO and that there were no	3
distinguishing features relevant to the vehicle. [MIO 16]	4
{17} 	Moreover, the affidavit for arrest warrant does not necessarily contain a	5
complete statement of the factual basis underlying the officer’s decision to stop	6
Defendant in relation to the BOLO, and Defendant cites to no authority in support of	7
such a proposition. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,	8
676 P.2d 1329 (stating that, absent cited authority to support an argument, we assume	9
that no such authority exists). We therefore conclude that Defendant’s claim of	10
ineffective assistance of counsel is more properly addressed in a habeas proceeding	11
where a complete factual record can be developed. See Crocco, 2014-NMSC-016,	12
¶ 24 (stating that the defendant’s ineffective assistance of counsel claim was more	13
properly brought in a habeas proceeding because the record was inadequate regarding	14
the necessary facts for a suppression motion); see also State v. Martinez, 1996-	15
NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that if the record does not	16
establish a prima facie case of ineffective assistance of counsel, the defendant must	17
pursue the claim in a habeas corpus proceeding).	18
{18} 	For these reasons, we deny the motion to amend the docketing statement and	19
affirm Defendant’s convictions.	20

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{19} 	IT IS SO ORDERED.	1
__________________________________	2
JULIE J. VARGAS, Judge	3
WE CONCUR:	4
_________________________________	5
JACQUELINE R. MEDINA, Judge	6
_________________________________	7
MEGAN P. DUFFY, Judge	8