October 8, 2019- State of New Mexico v. David Loflin, No. A-1-CA-36627

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 10/8/2019 11:33 AM
Plaintiff-Appellee, Al. ~£ eof
Mark Reynolds
v. No. A-1-CA-36627
DAVID LOFLIN,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
James M. Hudson, District Judge

Hector H. Balderas, Attorney General
Anita Carlson, 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
M. ZAMORA, Judge.
4} A jury convicted Defendant David Loflin of possession of burglary tools,

contrary to NMSA 1978, Section 30-16-5 (1963). Defendant appeals on the grounds

that the State presented insufficient evidence to support his conviction. We affirm.

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BACKGROUND

{2} At 4:00 a.m. on the morning of July 12, 2016, Sergeant Bart Devos of Roswell
Police Department stopped a vehicle with an expired registration tag. The Sergeant
made contact with the driver, Joseph Mendoza (Mendoza), and immediately noticed
two things: the driver was dressed in all black, and he was wearing a backpack while
he was driving. A closer look revealed that there were bolt cutters visibly protruding
from the backpack. The Sergeant then learned Mendoza did not have a valid driver’s
license and he had outstanding arrest warrants. Defendant was seated in the front
passenger seat. As a result of Mendoza’s arrest and a search warrant for the car, a
pry bar, two flashlights, and a file set were located in the vehicle. Defendant was
later charged with one count of possession of burglary tools. He appeals his
conviction.

DISCUSSION

33 Defendant argues that the jury did not have sufficient evidence to find him
guilty of possession of burglary tools. In response, the State argues that it presented
sufficient evidence and if not, there was sufficient evidence at least to infer there
was constructive possession. The State also argues that the jury had sufficient
evidence to infer that Defendant intended to use the tools for the purpose of

committing the burglary.

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4; “The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Montoya, 2015-NMSC-010, § 52, 345 P.3d 1056 (internal quotation marks and
citation omitted). The reviewing court “view[s] the evidence in the light most
favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-
009, § 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences
that support a different result. State v. Rojo, 1999-NMSC-001, § 19, 126 N.M. 438,
971 P.2d 829. “Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” State v. Smith, 1986-NMCA-089,
{ 7, 104 N.M. 729, 726 P.2d 883.

{5} Section 30-16-5 sets forth the elements for the criminal offense of possession
of burglary tools stating that possession consists of “having in the person’s
possession a device or instrumentality designed or commonly used for the
commission of burglary and under circumstances evincing an intent to use the same
in the commission of [the] burglary.” In accordance with UJI 14-1633 NMRA, the
Jury was instructed as follows:

1. [D]efendant had in his possession ... a steel pry bar and

a flashlight, which are designed for or commonly used in the
commission of a burglary;

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2. [D]efendant intended that these tools including a steel pry
bar and flashlight to be used for the purpose of committing a burglary;

3. This happened in New Mexico on or about the 12th day of
July, 2016.

Since Defendant was not in actual possession of the pry bar and arguably the
flashlight, the jury was given a constructive possession instruction. Under the
constructive possession instruction, “[a] person is in possession of an object when,
on the occasion in question, he knows what it is, he knows it is on his person or in
his presence and he exercises control over it.” See UJI 14-130 NMRA. The State
therefore had to prove that Defendant knew the tools were present in the car, and
that he exercised control over them. See State v. Garcia, 2005-NMSC-017, ¢ 13, 138
N.M. 1, 116 P.3d 72. Defendant argues that the State did not meet its burden of
proving all elements beyond a reasonable doubt.

A. Constructive Possession

1. Sufficient Evidence Supports Defendant’s Knowledge of the Presence of
the Burglary Tools

{6} | Defendant contends there was insufficient evidence presented to show he
knew the tools were present in the car. Defendant argues that the mere location of
the items was insufficient on its own to prove he had knowledge of the tools. The
State, on the other hand, asserts that the pry bar was not even partially hidden, but
was out in the middle of the floorboard right in front of Defendant, and that he was

sitting on top of the flashlight.

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{7} Defendant and the State both rely on State v. Garcia, 2005-NMSC-017, 138
N.M. 1, 116 P.3d 72. In Garcia, the defendant was charged with “felon in possession
of a firearm” and our Supreme Court upheld the conviction under a constructive
possession theory. Jd. 6. The defendant had a gun under his seat in the car and he
was sitting on an ammunition clip that matched the gun. /d. J 4. The Court
considered whether there was sufficient evidence to conclude that the defendant
knew the gun was under his seat to establish constructive possession. /d. J 14. A key
fact in Garcia, was that he was sitting on an ammunition clip that matched the gun
under his seat. See id. J 15. One of the key pieces of evidence allowing an inference
of both knowledge and control was the ammunition clip the defendant was sitting
on. Jd. ¥ 22.

{8} Like in Garcia, the evidence in the present case was sufficient to give rise to
a reasonable inference that Defendant had knowledge of the burglary tools. In this
case, the pry bar was either right under, or right next to his feet, and like the
defendant in Garcia, Defendant was either sitting on or directly next to a flashlight.
Sergeant Devos testified that the pry bar was found on the passenger floorboard and
that the flashlight was found on the passenger seat, where Defendant was sitting.
Based on the evidence presented, a reasonable juror could have concluded that
Defendant had knowledge of the burglary tools next to, or under his feet, and on his

seat.

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2. Sufficient Evidence Was Presented to Support the Jury’s Conclusion
That Defendant Was in Control of the Burglary Tools

9) “In addition to knowledge, there must be sufficient evidence of control” to
find constructive possession. Garcia, 2005-NMSC-017, § 16. “Control may ... be
established by drawing reasonable inferences from circumstantial evidence.” State
v. Jimenez, 2017-NMCA-039, § 48, 392 P.3d 668.

410} Defendant’s argument implies that since he was not in exclusive control of
the car, there is not enough evidence to support an inference of constructive
possession of the tools. Defendant argues that although the pry bar was on the
passenger floorboard and the flashlight on the passenger seat, they were not in a
location where only he could have put them. Defendant states the driver of the car
could also have placed the items there. The State responds by implying that exclusive
control of the tools is not necessary, because “[t]wo or more people can have
possession of an object at the same time.” UJI 14-130. Additionally, the State
contends that Defendant was in direct control of the pry bar because he was in direct
contact with it, by having his feet either on top of, or right next to the pry bar. The
State also asserts that the evidence of the tools ties Defendant to Mendoza and his
burglary tools, supporting an inference that they both had a plan to commit burglary.
The State emphasizes that there were two flashlights; one underneath Mendoza, and

one underneath Defendant—both equally accessible.

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{113} The parties rely on various cases analogizing or distinguishing this case from
other cases involving control of contraband. State v. Phillips, 2000-NMCA-028, { 8,
128 N.M. 777, 999 P.2d 421 is the most persuasive. In Phillips, the defendant argued
that there was insufficient evidence to find that she constructively possessed
contraband found in her bedroom that she shared with one other person. See id. 7.
This Court recognized that the defendant did not have exclusive control over her
bedroom where the contraband was discovered, but it also noted in part that all of
the contraband discovered was in pairs, thus pointing to two individuals being
involved. See id. J§ 9-10. In Phillips, this Court held that a rational juror could have
inferred from the duplicate sets of contraband that one belonged to the defendant and
one to another individual. /d. § 10. This Court acknowledged that the facts created
an inference of constructive possession. /d.

{12} Here, like in Phillips, Defendant was not in exclusive control of the car, just
as the defendant in Phillips was not in exclusive control of the bedroom. Arguably,
there were two sets of burglary tools—one set for each of the men in the car. The pry
bar was within reach of Defendant, and the flashlight was either directly next to
Defendant’s body, or he was sitting on it. The driver of the car had his own set of
tools, namely the bolt cutters in his backpack, and his own flashlight on his seat. It
was reasonable for the jury to infer that there was sufficient evidence to conclude

that Defendant was in control of one set of burglary tools.

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B. There Was Sufficient Evidence From Which a Jury Could Infer That
Defendant Intended to Use the Burglary Tools in the Commission of a
Burglary

{133} Defendant contends that the State failed to prove possession of burglary tools

under circumstances evincing an intent to use the tools in committing a burglary.

Intent is rarely provable by direct evidence. See State v. Jennings, 1984-NMCA-051,

q 14, 102 N.M. 89, 691 P.2d 882. If there are reasonable inferences and sufficient

direct or circumstantial facts, then the issue of intent is determinable by the jury and

will not be reweighed by the reviewing court. See id. ¥ 54.

{14} Viewing the evidence in the light most favorable to the verdict, Sergeant

Devos’s testimony was sufficient to support the jury’s conclusion that there were

“circumstances evincing an intent to use the same in the commission of burglary.”

See § 30-16-5. Sergeant Devos testified that Mendoza and Defendant were driving

around at approximately 4:00 a.m., with an expired registration tag. According to

Sergeant Devos’ testimony, Mendoza did not pick Defendant up in this

neighborhood, nor did either of them live there. Both Mendoza and Defendant were

cloaked in dark clothing. While driving, Mendoza was wearing a backpack with bolt
cutters protruding, and had a flashlight near his seat. Defendant had a pry bar on the

floorboard of his seat and a flashlight on his seat. According to Sergeant Devos, the

items were considered to be burglary tools because bolt cutters are very powerful

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tools that can be used to cut locks or fences, a crow bar can be used to pry things
open, and a flashlight to illuminate the area when it is dark out.

15} Defendant’s actions and the surrounding circumstances provide sufficient
evidence from which a jury could infer that Defendant and Mendoza possessed
burglary tools, and intended to commit a burglary. The jury was free to reject any
inference that the tools were possessed solely by the driver of the car. We do not
search for inferences supporting a contrary verdict or re-weigh the evidence because
this type of analysis would substitute an appellate court’s judgment for that of the
jury. State v. Graham, 2005-NMSC-004, 4 14, 137 N.M. 197, 109 P.3d 285. We
conclude the State presented sufficient evidence from which the jury could have
reasonably inferred that Defendant either actually or constructively possessed the
burglary tools, and under the circumstances evinced an intent to use the same in the
commission of a burglary.

{16} Finally, Defendant argues that the intent element can only be satisfied if there
is an alleged burglary. Defendant asserts the State universally has proven the intent
element by charging and obtaining convictions for burglary, or some other similar
crime. We do not find Defendant’s argument persuasive. We have stated that “the
possession of burglary tools statute does not require that a defendant be convicted of
burglary to be held liable for possession.” See State v. Barragan, 2001-NMCA-086,

q 27, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo,

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2012-NMSC-008, § 37 n.6, 275 P.3d 110. “Instead, the evidence must only show
that a defendant have an intent to use the instrumentality or device in committing
burglary.” Barragan, 2001-NMCA-086, § 27 (internal quotations and citation

omitted). Despite Defendant’s assertion that there are no cases where a defendant is

convicted for possession of burglary tools without at least a charge of actual burglary
(or some other property crime), a charge or conviction for burglary is not required
under Section 30-16-5.

CONCLUSION

{17} Based on the foregoing, we affirm Defendant’s conviction for possession of
burglary tools.

3} IT ISSO ORDERED.

ML 2

M. MONICA ZAMORA, Judge

WE CONCUR:

Che Ch Vo

JULIE J. VARGAS, Sidge

pucgustine Be. Mackirra.
JACQUELINE R. MEDINA, Judge

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