June 13, 2019- State of New Mexico v. Joseph Donaldson, No. A-1-CA-37484

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
Filed 6/13/2019 1:35 PM

a= :
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Nak Reynolds

STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. No. A-1-CA-37484
JOSEPH DONALDSON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY

Robert A. Aragon, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

William G. Stripp
Ramah, NM

for Appellant
MEMORANDUM OPINION
BOGARDUS, Judge.
43 Defendant Joseph Donaldson appeals his conviction, following a jury trial, of

possession of marijuana with intent to distribute, contrary to NMSA 1978, Section

1 30-3 l-22(A)(l) (2011 ). 1 Defendant contends that there was insufficient evidence to
2 prove that he was in possession or control of the marijuana; therefore, there was
3 insufficient evidence to 	support his 	conviction for 	possession with 	intent to
4 distribute. We agree and reverse.
5 BACKGROUND
6 	{2} 	In February 2017, Agent Jess Watkins and other Gallup police officers arrived
7 at Defendant's home with a search warrant authorizing a search ofDefendant's home
8 and truck. Defendant, present at the home with an adult female and two children,
9 answered the door and, after inspecting the warrant, let the officers in the home.
10 Defendant's ex-wife, Theresa Donaldson, who was also named in the warrant, was
11 	not present. In their search, officers found three small bags of marijuana and a small
12 postal scale ip a kitchen cabinet, a gallon-sized bag of marijuana inside a shopping
13 	bag located on a shelf in a downstairs closet, two glass jars of marijuana inside a
14 cabinet in the garage, a small bag of marijuana inside a shopping bag on top of a
15 	cabinet in the garage, and three gallon-sized bags of marijuana inside a shopping bag
16 	in a false ceiling panel in the garage. The officers also found four small bags of
17 marijuana in the console of the truck, which was parked near the home.
1Defendant was also convicted of possession of drug paraphernalia, contrary
to NMSA 1978, Section 30-31-25.l(A) (2001). Because Defendant did not provide
any argument as to this conviction, we do not address it further.
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1 {3} 	The marijuana seized from the home and truck weighed approximately four
2 pounds. As a result of what was found in the search, Defendant was arrested and
3 charged with possession of marijuana with the intent to . distribute, contrary to
4 Section 30-31-22(A)(l), and possession of drug paraphernalia, contrary to Section
5 30-31-25.l{A).
6 {4} 	At trial, Agent Watkins testified that Defendant did not have any marijuana in
7 his pockets or otherwise on his person at the time of the search and that no drugs
8 were found in the home's bedrooms. Agent Watkins testified that the search did not
9 uncover any device that could be used to inhale, ingest, or otherwise use marijuana
10 and that the packaging of the .marijuana and the scales suggested to him that the
11 	marijuana was intended for purchasing, distribution, and sale. He further testified
12 that much of the marijuana appeared stale. Agent Watkins testified that he had seen
13 	Defendant's ex-wife previously at the home and also in the truck in which officers
14 found marijuana.
15 	{5} 	At the close of the State's case, Defendant moved for a directed verdict
16 contending that the State failed to prove that Defendant possessed or had control of
17 the marijuana. The court denied the motion, noting that the State had made a "prima
18 	facie" case "creat[ing] a quintessential jury question."
19 	{6} 	In its closing remarks, the State relied on the following evidence that it argued
20 proved Defendant possessed the marijuana: Defendant was present at the home, the
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1 marijuana was found "all over" the home, and the marijuana had a peculiar odor.
. 2 Therefore, the State concluded Defendant had to have known it was there. The State
3 urged the jury to find Defendant possessed the marijuana because "a man's home is
4 his castle and [so is] everything in it." The jury found Defendant guilty of both_
5 counts.
6 DISCUSSION
7 	{7} 	Relying on State v. Brietag, 1989-NMCA-019, 108 N.M. 368, 772 P.2d 898,
8 and State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P2d 100, Defendant
9 argues that his presence in the vicinity of marijuana, without more, is insufficient to
10 prove that he knew that the marijuana was there or that he exercised control over it.
11 	In response, the State contends that there was sufficient circumstantial evidence from
12 which a reasonable jury could have inferred that Defendant knew of the marijuana
13 	and excised control over it.
14 {8} 	"The test for sufficiency of the evidence is ·whether substantial evidence of
15 	either a direct or circumstantial nature exists to support a verdict of guilty beyond a
16 reasonable doubt with respect to every element essential to a conviction." State v.
17 Montoya, 2015-NMSC-010, 152, 345 P.3d 1056 (internal quotation marks and
18 citation omitted). We are required to "view the evidence in the light most favorab_le
19 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts
20 in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009,
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1 ,r 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that
2 	support a different result. See State v. Rojo, 1999-NMSC-001, ,r 19, 126 N.M. 438,
3 971 	P .2d 829. Substantial evidence is defined as "such relevant evidence as a
4 reasonable mind might accept as adequate to support a conclusion[.]" State .v.
5 Salgado, 1999-NMSC-008, ,r 25, 126 N.M. 691, 974 P.2d 661 (internal quotation
6 marks and citation omitted).
7 {9} 	To establish that Defendant engaged in distribution prohibited by Section 30-
8 31-22(A)(l), the 	State was required to prove beyond a reasonable doubt that
9 Defendant had marijuana in his possession, knew that it was marijuana, intended to
10 transfer it to another, and this happened on the date and place specified. See UJI 14-
11 	3104 NMRA (providing jury instruction for possession with intent to distribute a
12 controlled substance); State v. Smith, 1986-NMCA-089, ,r 7, 104 N.M. 729, 726 P.2d
13 	883 ("Jury instructions become the law of the case against which the sufficiency of
14 the evidence is to be measured."). 	In evaluating whether substantial evidence
15 	supports the verdict of guilt beyond a reasonable doubt in this regard, we have
16 previously recognized that
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[p ]roof 	of 	possession 	of 	illegal 	drugs 	may 	be 	established 	by
circumstantial as well as direct evidence. Possession may be actual or
constructive. Constructive possession exists when a defendant has
knowledge of and control over the drugs. Such constructive possession
need not be exclusive. Constructive possession of sufficient ·quantities
will sustain a conviction of possession with intent to distribute.
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1 State v. Chandler, 1995-NMCA-033, 110, 119 N.M. 727, 895 P.2d 249 (citations
2 omitted).
3 {10} 	Because Defendant was not in physical possession of the.marijuana at the time
4 it was discovered, the State relied on a theory of constructive possession at trial. See
5 State v. Lopez, 2009-NMCA-044, 119, 146 N.M. 98, 206 P.3d 1003 .(stating that
6 possession of illegal drugs can be either actual or constructive); see also State v.
7 Howl, 2016-NMCA-084, 131, 381 P.3d 684 ·("Constructive possession is sufficient
8 to support a conviction."). "Constructive possession exists when the accused has
9 knowledge of drugs or paraphernalia and exercises control over them." State v.
10 Phillips, 2000-NMCA-028, 18, 128 N.M. 777, 999 P.2d 421. "When the accused
11 	does not have exclusive control over the premises where the drugs are found, the
12 mere 	presence 	of the 	contraband is 	not 	enough to 	support 	an 	inference 	of
13 	constructive possession." Id. Additional circumstances or incriminating statements
14 or conduct on the part of the accused are then necessary to show constructive
15 	possession in the absence of exclusive control. Id.; Brietag, 1989-NMCA-019, 112.
16 	{11} 	We believe this Court's decision in Brietag, 1989-NMCA-019, articulates
17 what inferences of knowledge and control are reasonable in the case at bar. We also
18 	believe our decisions in Herrera, 	1977-NMCA-028, and State v. 	Maes, 	2007-
19 NMCA-089, 142 N.M. 276, 164 P.3d 975, are instructive of the evidence necessary
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1 to support an inference of constructive possession. We begin by discussing each
2 decision in tum and then address the sufficiency of the evidence.
3 	{12} 	In Brietag, the defendant was charged with possession of drugs with the intent
4 to distribute and other charges after a search warrant was executed at a residence
5 rented to him. 1989-NMCA-019, 111-2. Officers could not identify who actually 1
6 lived at the home, but observed the defendant coming and going. Id. 1 3. When
7 police executed a search warrant on the home, seven or eight individuals were·
8 staying there; however, the defendant was not present. Id 113, 8. In the search,
9 officers found 	a substantial amount of evidence, 	i~cluding methamphetamine,
10 marijuana, and cocaine in one of the bedrooms that also contained a number of the
11 	defendant's personal possessions, including items with the defendant's name on
12 them and photographs of the defendant with family. Id.. 114, 6. However, the
13 	bedroom also contained personal possessions of several other people and additional
14 evidence indicated that the house was being used as a "crash pad." Id. 114-7, 16.
15 	There was also evidence that the defendant had been living in another location for
16 approximately one month before the search. Id. 18. We held that this evidence was
17 insufficient to establish "a rational connection between the location of the drugs and
18 	[the.d]efendant's knowledge and control sufficient to prove constructive possession
19 beyond a reasonable doubt." Id. 116. We noted that "[t]he inference _of knowledge
20 	and· control of drugs, based on proximity to personal belongings, arises from the
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1 extent of control the owner or lessee exercises over the area where drugs are found."
2 Id. 1 17. We concluded that "the state [failed to] establish[] a rational connection
3 between the location of the drugs and [the] defendant's knowledge and control[.]"
4 Id.116.
5 	{13} 	In Herrera, officers searched the defendant's house and curtilage for heroin,
6 pursuant to a search warrant. 	1977-NMCA-028, 13. The offic.ers found a vial
7 containing heroin underneath a boat trailer in a "freshly dug earth spot." Id. (internal
8 quotation marks omitted). Additionally, numerous unused "tinfoils" in the size
9 usually used to wrap heroin "caps" were found. Id. 16. Because the defendant's wife
10 liv~d with him, the defendant was not in exclusive possession of the premises. Id.
11 	15. Therefore, to allow for an inference of constructive possession, we noted that
12 the evidence must show "incriminating statements or circumstances tending ·to
13 	support the inference." Id. On the way to the police station after their arrest, the
14 defendant's wife stated, "You got everything that we had, that's all that we had." Id.
15 16. In response, the defendant told his wife to keep her mouth shut. Id. 	We
16 concluded that this evidence supported an inference that he constructively possessed
17 the heroin. Id.
18 	{14} 	In Maes, the defendant was present when a search warrant was executed at
19 the home~ 2007-NMCA-089, 14. During the search, two bottle caps were seized
20 from a bedroom that had "trace amounts of a white granular residue inside[,]" which
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1 tested positive for methamphetamine. Id. , 5. The bottle caps were found in an Alka-
2 Seltzer box and a shoe box. Id. A comer portion of a plastic baggie containing traces
3 	of white powder was also seized, and an officer "testified that methamphetamine and
4 cocaine were often packaged in the comer of a plastic baggie." Id. Two pieces of
5 mail addressed to the defendant were seized, but neither was addressed to the home
6 where the search was conducted. Id. , 	6. Although women's clothing was hanging
7 in the closet of the bedroom containing the bottle caps and plastic baggie, the
8 defendant denied living _at the house. Id. ,, 7, 8. This Court determined that the
9 methamphetamine was present ·in trace amounts and concealed from view in a
10 private area of the home. Id. ,-r 17. Additionally, the dried water-methamphetamine
11 	residue suggested that the drugs were mixed into the solution and used sometime in
12 the past. Id. This Court concluded that the "evidence was insufficient under Brietag
13 	to support inferences of knowledge and control to the level of confidence required
14 by proof beyond a reasonable doubt." Id. ,-r 19.
15 	{15} 	We view our decisions in Brietag, Herrera, and Maes to support reversal in
16 this case. Here," Defendant did not have exclusive control over the areas in which
17 drugs were found because there was another adult present when the search warrant
18 	was executed and because there was evidence that Defendant's ex-wife had access
19 to both the home and the truck. See Maes, 2007-NMCA-089, ,-r 14 (concluding the
20 defendant did not have exclusive control of a house when, among other factors, the
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1 officers found women's clothing in the bedroom but could not say it was the
2 defendant's 	clothing); 	Brietag, 	1989-NMCA-019, 	112 	(reaching 	the 	same
3 conclusion when the defendant was absent from the home during the seizure of the
4 contraband and the residence being open and used by numerous individuals).
5 Because Defendant was not in exclusive possession, the State needed to present
6 additional evidence to support an inference of constructive possession. Phillips,
7 2000-NMCA-028, 18; Brietag, 1989-NMCA-019, 112; see, e.g., Herrera, 1977-
8 NMCA-028, 1 6 (finding sufficient evidence of constructive possession following-
9 statements by the defendant's wife). Such additional evidence is entirely absent from
10 this case.
11 	{16} 	The State, both at trial and on appeal, relied on Defendant's ownership of the
12 home and truck as evidence to support the inference of constructive possession. In
13 	closing, the State argued Defendant constructively possessed the marijuana because
14 "a man's home is his castle and [so is] everything in it." The State takes a similar
15 	position on appeal, arguing that Defendant's constructive possession is supported by
16 "the reasonable inference that [Defendant] owned the residence" which is sufficient
17 to infer that Defendant "knew about and controiled the significant amounts of
18 marijuana and paraphernalia discovered in various areas of his own home."
19 {17} 	The State's arguments are a further expansion of arguments we rejected in
20 	Maes. In that case, the state argued that "a person left in charge of a house to which
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1 other persons have access is in constructive possession of every item that is present
2 on the premises." 	Maes, 	2007-NMCA-089, 	, 20. 	We 	cautioned that such an
3 expansive view of constructive possession would "stretch the concept of possession
4 _beyond the breaking point." Id. Therefore, we expressly disapproved of closing
5 arguments that assert the "[d]efendant necessarily controlled every item in the house
6 of which she had knowledge"[,]" which is an erroneous statement of the law of
7 constructive possession. Id., 21. Like the argument in Maes, the State's argument
8 in this case ignores our well-established case law on constructive possession, which
9 required the State to prove more than Defendant's ongoing connection or ownership
10 	of the home and truck where the marijuana was found. See id. , 	16.
11 	{18} 	Here, the State has proven nothing more than Defendant's connection to or
12 ownership of the premises. Although one of the agents remarked on the. odor
13 	emanating from the bag containing the seized marijuana when he opened it at trial,
14 none 	of the witnesses testified that the odor of marijuana was noticeable in
15 	Defendant's home or the truck at the time the search warrant was executed. On the
16 contrary, there was testimony suggesting much of the seized marijuana was stale.
17 Furthermore, none of the seized marijuana was found out in the open in the common
18 	areas of the home, which, when combined with Defendant's presence, could have
19 suggested 	an 	inference 	of constructive 	possession. 	See 	id. 	, 	17. 	Rather, 	the
20 marijuana was concealed in a kitchen cabinet, in a shopping bag on a shelf in the
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1 downstairs closet, in jars inside a cabinet in the garage, in a shopping bag on top of
2 a cabinet in the garage, and inside a shopping bag in a false ceiling panel in the
3 garage. Additionally, no evidence was presented that indicated Defendant made any
4 incriminating statements in this case. See Herrera, 1977-NMCA-029, 16 (finding
5 sufficient evidence of constructive possession after the defendant's wife made
6 statements that the police had located all of their drugs). Therefore, we conclude
7 there was insufficient evidence as a matter oflaw for the fact-finder to conclude that
8 Defendant constructively possessed the marijuana. See State v. Apodaca, 1994-
9 NMSC-121, 1 	6, 	118 	N.M. 	762, 	887 P.2d 	756 	(stating 	"we 	make 	a 	legal
10 determination of whether the evidence viewed [with deference to the fact-finder's
11 	resolution of factual conflicts and inferences] could justify a finding by any rational
12 trier of fact that each element of the crime charged has been established beyond a
13 	reasonable doubt" (internal quotation marks and citation _omitted)).
14. {19} 	Accordingly, we hold there is insufficient ·evidence to sustain Defendant's
15 .conviction for possession of marijuana with intent to distribute.
16 CONCLUSION
17 	{20} 	We reverse Defendant's conviction for possession of marijuana with intent to
18 	distribute, contrary to Section 30-31-22(A)(l), and remand with instructions to
19 dismiss the charge.
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213} ITISSO ORDERED.

WE CONCUR:

CQVELINE R. MEDINA, Judge

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bistro Goyertlads

KRISTINA BOGARDUS, Judge