July 22, 2019- State of New Mexico v. Danny Goree, No. A-1-CA-36667

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Court of Appeals of New Mexico
Filed 7/22/2019 11:13 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW ond

STATE OF NEW MEXICO,
Plaintiff-Appellee,
V. No. A-1-CA-36667
DANNY GOREE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

Mark T. Sanchez, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION
B. ZAMORA, Judge.
43 Defendant Danny Goree appeals his conviction for possession of a controlled
substance (heroin), contrary to NMSA 1978, Section 30-31-23(E) (2011, amended

2019). On appeal, Defendant argues that: (1) there was insufficient evidence to

stare Reynolds

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convict him of possession of a controlled substance and (2) the district court abused
its discretion in preventing Defendant from questioning an adverse witness about an
incident that occurred over twenty years prior. Unpersuaded, we affirm.
BACKGROUND

23 In May 2016 Captain Rodney Porter of the Lea County Sheriff's Office
received a tip from a confidential informant about a man who overdosed on heroin.
When Captain Porter arrived at the scene of the overdose—the residence of a woman
named Jacqueline Rosemond—he found a man (Wayne Faulk) sitting on the ground
sweating profusely. Faulk admitted he used heroin and Captain Porter immediately
called an ambulance.

3} Defendant, Rosemond, and two other individuals were also present when
Captain Porter arrived. Defendant told Captain Porter that Faulk had fallen
unconscious after overdosing on heroin, and that he poured water on Faulk to revive
him. While speaking with Defendant, Captain Porter noticed and asked about a
syringe sticking out of Defendant’s pants pocket. Captain Porter testified that
Defendant then took the syringe containing a dark liquid that appeared to be heroin
out of his pocket and attempted to push the plunger to empty the syringe of the liquid.
Captain Porter prevented Defendant from doing so by grabbing his hand and taking
the syringe from him. Based on his training and experience, Captain Porter testified

that heroin already drawn into a syringe is for immediate, not later, use. According

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to Captain Porter, Defendant admitted possession of the syringe, but explained he
took it from Faulk after he overdosed. Defendant also told Captain Porter that he
used three to four papers—a one unit dosage of heroin—a day. Captain Porter then
tagged the syringe into evidence. At trial, the State’s forensic chemist testified that
the liquid in the syringe tested positive for heroin.

{4} Captain Porter testified that he did not arrest Defendant at that time. Instead,
he offered Defendant the opportunity to work as a confidential informant.
Defendant, however, did not respond to the offer and was later arrested for this
incident.

{5} Defendant also testified at trial. Defendant stated he had been a heroin addict
for thirty-six years, but on that day, he was using Suboxone, an opiate blocker.
Defendant believed he could not use both Suboxone and heroin at the same time.
Defendant denied having a syringe in his pocket, contrary to Captain Porter’s
testimony, and testified that, while he never received a syringe from Faulk, he saw
Captain Porter retrieve two syringes from Rosemond’s house. According to
Defendant, Captain Porter told him that if he did not help the drug task force
Defendant would be charged with possession of one of the syringes seized from
Rosemond’s house.

6} On the morning of trial, the State requested that the district court prohibit

defense counsel from cross-examining Captain Porter about a twenty-two-year-old

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incident involving the mishandling of evidence that occurred when Captain Porter
was working with the Midland Police Department (Midland incident). The district
court granted this request and did not permit Defendant to question Captain Porter
about the Midland incident.

{7 The jury found Defendant guilty of possession of a controlled substance.
Defendant now appeals.

DISCUSSION

I. Sufficient Evidence Supported Defendant’s Conviction

{83 Defendant argues that there was insufficient evidence to support his
conviction for possession of a controlled substance. Consistent with his trial
testimony, Defendant maintains he did not possess heroin and that is why Captain
Porter did not arrest him immediately. The State argues that there was sufficient
evidence to support his conviction and there is no reason to re-assess the jury’s
determination.

{9} “The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Duran, 2006-NMSC-035, 7 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
and citation omitted). “[W]e must view the evidence in the light most favorable to

the guilty verdict, indulging all reasonable inferences and resolving all conflicts in

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the evidence in favor of the verdict.” /d. (internal quotation marks and citation
omitted). “Contrary evidence supporting acquittal does not provide a basis for
reversal because the jury is free to reject [the dJefendant’s version of the facts.” /d.
(internal quotation marks and citation omitted). The function of an appellate court
with respect to challenges to the sufficiency of the evidence is to “ensure that a
rational jury could have found beyond a reasonable doubt the essential facts required
for a conviction.” /d. (emphasis, internal quotation marks, and citation omitted). We
apply these principles to determine if Defendant’s conviction is supported by
sufficient evidence.

{10} To find Defendant guilty of possession of heroin, the jury must have found
that Defendant had heroin in his possession and he knew or believed it to be heroin.
UJI 14-3102 NMRA (possession of a controlled substance); § 30-31-23(E)
(controlled substances; possession prohibited). The jury heard evidence that after
Captain Porter arrived at the scene of a drug overdose, he noticed a syringe sticking
out of Defendant’s pants pocket and asked Defendant about the syringe. Captain
Porter testified that Defendant then took the syringe out of his pocket, which
contained what later testing confirmed to be heroin, and tried to push the plunger to
dispose of the liquid. The syringe in Defendant’s pocket, his attempt to dispose of
the heroin contained within the syringe in front of a police officer, considered

alongside Defendant’s admission to Captain Porter that he was a daily heroin user,

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constitutes evidence that Defendant possessed the syringe and knew it contained
heroin. Based on our review of the record, a rational jury could have found beyond
a reasonable doubt that Defendant possessed heroin and knew or believed it to be
heroin.

{143 While Defendant denied possessing heroin, “[c]ontrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject
Defendant’s version of the facts.” Duran, 2006-NMSC-035, 4 5 (internal quotation
marks and citation omitted). The jury here chose to reject Defendant’s version of the
facts. Thus, viewing the evidence in the light most favorable to the guilty verdict,
substantial evidence supports Defendant’s conviction for possession of a controlled
substance.

II. Impeachment of Captain Porter

{123 Defendant argues that the district court abused its discretion by preventing
him from impeaching Captain Porter’s testimony and, consequently, he was
deprived of his constitutional right to present a defense and confront and cross-
examine the State’s witness. According to Defendant, he had a right to question
Captain Porter regarding the Midland incident because it involved dishonesty, was
probative of his character for untruthfulness under Rule 1 1-608(B) NMRA, and he
was the only witness to testify that Defendant possessed heroin. The State argues

that the district court did not abuse its discretion because the allegations made against

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Captain Porter were too remote in time, the offer of proof by Defendant was
inadequate, and the Midland incident, as described to the court the morning of trial,
was dissimilar to the facts in this case. For the reasons that follow, we conclude that
the district court did not abuse its discretion by precluding Defendant from
questioning Captain Porter about the Midland incident.

A. Failure to Preserve

(133. Asa preliminary matter, we address whether Defendant preserved two issues
pertaining to the impeachment of Captain Porter. First, Defendant did not raise his
right to confrontation below nor has he requested that we review his confrontation
claim for fundamental error. As a result, we will not address Defendant’s
confrontation argument on appeal. See State v. Lucero, 1986-NMCA-085, 4 12, 104
N.M. 587, 725 P.2d 266 (“The issue of denial of the right to confrontation may not
be raised for the first time on appeal.”); see also State v. Silva, 2008-NMSC-051,
15, 144.N.M. 815, 192 P.3d 1192 (reviewing unpreserved confrontation clause claim
for fundamental error), holding modified by State v. Guerra, 2012-NMSC-027, { 16,
284 P.3d 1076. Instead, we limit our analysis to the district court’s grant of the
State’s motion in limine. See Lucero, 1986-NMCA-085, 4 12 (refusing to reach
confrontation clause issue founded on general hearsay objection and argument that

the statement at issue did not fall within any exception to the hearsay rule).

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{143 Second, Defendant raises new contentions on appeal that were not raised
below. Namely, he contends that he should have been permitted to impeach Captain
Porter with evidence that the officer had resigned from the Midland Texas Police
Department after allegations that he falsely charged people with possession of
narcotics and planted evidence. However, this is different than the offer of proof
presented to the district court. At the motion hearing below, the focus of the Midland
incident was that the officer “mishandled” evidence. Specifically, at the hearing, the
only discussion of the Midland incident was that Captain Porter placed evidence in
the trunk of his vehicle rather than securing it into an evidence locker. Defendant did
not invoke a ruling from the district court on the allegations mentioned in
Defendant’s brief in chief, such as wrongly charging people for drug possession or
planting evidence. See Rule 12-321(A) NMRA (“To preserve an issue for review, it
must appear that a ruling or decision by the trial court was fairly invoked.”).
Defendant’s offer of proof was inadequate to inform the district court of the
substance of this evidence and as such, these arguments are not preserved. See
Nichols Corp. v. Bill Stuckman Const., Inc., 1986-NMSC-077, 4 16, 105 N.M. 37,
728 P.2d 447 (“An offer of proof is essential to preserve error where evidence has
been excluded.”); see also Rule 11-103(A)(2) NMRA (stating that a party claiming
error in the exclusion of evidence must show the ruling affects a substantial right of

the party and inform the court of the substance by an offer of proof). We therefore

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limit our analysis to whether the district court abused its discretion in prohibiting
Defendant from cross-examining Captain Porter about his mishandling of evidence.

B. The District Court Did Not Abuse its Discretion in Prohibiting
Impeachment of Captain Porter’s Testimony

{15} The admission of evidence and the extent of cross-examination are matters
within the district court’s discretion that we will affirm absent a clear abuse of
discretion. See State v. Smith, 2001-NMSC-004, f§ 17, 19, 130 N.M. 117, 19 P.3d
254.“[T]he court may, on cross-examination, allow [specific instances of a witness’s
character for truthfulness] to be inquired into[.]” Rule 11-608(B)(1); see State v.
Casillas, 2009-NMCA-034 § 43, 145 N.M. 783, 205 P.3d 830 (stating that under
Rule 11-608 “[a] party may . . . inquire into particular instances of a witness’s
conduct on cross-examination . . . provid[ed] the conduct is probative of truthfulness
or untruthfulness”). “While Rule 11-608 specifically allows the court to permit
cross-examination on prior specific acts relating to a witness’s character for
truthfulness, the language in the rule is permissive, not mandatory.” State v. Torres,
2018-NMSC-013, 9 58, 413 P.3d 467.

{16 As explained above, we limit our analysis to Captain Porter’s failure to
properly secure evidence while an officer in Midland. While this may be evidence
that Captain Porter acted carelessly by leaving evidence in his vehicle as opposed to
storing it in an evidence locker, it is not evidence that bears on his character for

truthfulness or untruthfulness. See State v. Padilla, 1994-NMCA-067, {ff 30-31, 118

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N.M. 189, 879 P.2d 1208 (concluding that pursuant to Rule 11-608, an officer’s
credibility could not be attacked based on his pending criminal charges for a sex
crime that allegedly occurred while on duty); State v. Marquez, 1974-NMCA-129,
4 29, 87 N.M. 57, 529 P.2d 283 (stating that the defendant’s testimony could not be
impeached with evidence that he recklessly used a gun the day prior to him
murdering the victim because this evidence did not test the truthfulness of the
defendant’s testimony and thus, it was inadmissible under Rule 1 1-608). The district
court properly excluded the impeachment evidence, as it was irrelevant to Captain
Porter’s character for truthfulness and therefore, inadmissible under Rule 11-608.
Given this, we need not address additional considerations argued on appeal, such as
whether the incident was too remote in time, unduly prejudicial or distracting to the
jury. We hold the district court did not abuse its discretion in prohibiting Defendant
from questioning Captain Porter regarding the Midland incident.

CONCLUSION

{17} For the foregoing reasons, we affirm Defendant’s conviction for possession
of a controlled substance.

18} IT ISSO ORDERED.

AL DION
BRIANA H. ZAMORA Judge

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WE CONCUR:

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J. MILES HANISEE, Judge

Q.A A

JENNIFER L. ATTREP, Judge

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