State v. BenallyState v. Benally
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter M. Hart III, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
HANISEE, Judge.
{1} Defendant appeals from his convictions for two counts of possession of a deadly weapon by a prisoner in violation of
BACKGROUND
{2} Prison staff received information from an inmate that prompted a “shakedown” of the particular area of the prison where Defendant was housed. This entailed the systematic removal of inmates and an ensuing search for contraband, including the bunk and shower areas of the “pod” that was the subject of concern. The area searched by prison staff was an open, dormitory-style space with approximately six to eight recessed bunk units, each containing about six bunks.
{3} Defendant slept on the bottom mattress of a three-stack bunk, with the middle bunk being vacant. In Defendant’s bunk area were pieces of legal paperwork, mail, and other items that bore only Defendant’s name. On an “L” shaped support bar of the vacant, middle bunk at the top of Defendant’s bunk area, prison staff found a shaving razor with a playing card folded around it to form a handle (razor weapon). Upon discovering the razor weapon, prison staff removed the mattress from Defendant’s bunk and noticed a four- to five-inch slit in its side. They cut open the mattress and found a sharpened piece of the end of a plastic mop handle (mop weapon) concealed within. Approximately eighty feet away in the shower area of the pod, prison staff next found orange plastic shavings that matched the end of a mop handle found in a shower stall and similar residue ground into the concrete lip of the shower pan. After checking a utility closet that contained items used by inmates to clean their cells, prison staff also determined
{4} Upon discovery of the two makeshift weapons, Deputy Jason Sherman spoke with Defendant but did not inform him of any specifics associated with the discovery of the weapons. Deputy Sherman told Defendant only that he wanted to “speak with him about the incident at the jail today.” During the conversation, Defendant expressed feelings of “hate and anger” toward a particular inmate and stated that he wanted to “сut that guy’s head off.” Obliquely referring to what was found during the prison search, though not identifying any specific item or object by name, Defendant also stated, “Check this out, Sherman. What if that thing is mine?” Defendant went on to say that (1) the prison staff should be glad they found what they were looking for; (2) had he been asked, he simply would have told the prison staff to “pull all the mattresses and that would have been the end of it”; and (3) some things “could have gone down, but that God was looking out” and pulled Defendant through the situation before he “lost it” and “something . . . [went] down.” Despite these statemеnts, when asked to admit the weapons were his, Defendant declared, “I don’t believe in statements because I could lie and say it ain’t mine and be lying out my ass and still get charged. Or I could say, ‘Yes, it’s mine,’ and still get charged with it.”
{5} Defendant was charged with two counts of possession of a deadly weapon or explosive by a prisoner, contrary to
DISCUSSION
I. Sufficiency of the Evidence
{6} Defendant argues that his convictions are not supported by substantial evidence. Specifically, he contends that because “[t]he weapons in this case were accessible to anyone in the pod[,] every inmate in the pod could have exercised control over them[,]” thus precluding a finding that Defendant, and not any other inmate, possessed the weapons.
{7} “To determine whether the evidence presented was sufficient to sustain the verdict, we must decide whether substantial evidence of either a dirеct 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. Brietag, 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d 898. Substantial evidence consists of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661. We view the evidence in the light most favorable to the 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. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We do not reweigh the evidence and may not substitute our judgment for that of the fact[-]finder, so long as there is sufficient evidence to support the verdict.” Brietag, 1989-NMCA-019, ¶ 9.
{8} In it is entirety
Possession of deadly weapon or explosive by prisoner in lawful custody consists of any inmate of a penal institution, reformatory, jail or prison farm or ranch possessing any deadly weapon or explosive substance.
Whoever commits possession of deadly weapon or explosive by prisoner is guilty of a second degree felony.
Thе only element at issue in this appeal is the statutory requirement that the forbidden weapons at issue were possessed by Defendant. Because the weapons were not found on Defendant’s person but were discovered concealed above his bunk and within his mattress, this case turns on constructive, not actual, possession. See State v. Barber, 2004-NMSC-019, ¶ 22, 135 N.M. 621, 92 P.3d 633 (describing the differences between actual and constructive possession and explaining that “[w]hen actual physical control cannot
{9} “Constructive possession exists when the accused has knowledge of [the prohibited items] and exercises control over them.” State v. Phillips, 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d 421. While “the mere presence of the contraband is not enough to support an inference of constructive possession[,]” id., a person can be convicted of possession even “without proof that he [or she] was the exclusive occupant” of the area where the contraband was located. State v. Muniz, 1990-NMCA-105, ¶ 15, 110 N.M. 799, 800 P.2d 734. When exclusive control is at issue, “[a]dditional circumstances or incriminating statements are required.” Phillips, 2000-NMCA-028, ¶ 8. “The accused’s own conduct may afford sufficient additional circumstances for constructive possession.” Id. We “must be able to articulate a reasonable analysis that the fact-finder might have used to determine knowledge and control.” State v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (alteration, internal quotation marks, and citation omitted).
{10} Based on the evidence at trial, we conclude that the jury could have reasonably inferred that Defendant had knowledge of and control over both weapons. To begin, numerous statements were attributed to Defendant that the jury could have taken as evidence that Defendant had knowledge of the weapons. Even though Deputy Sherman did not inform Defendant of the specific items found by prison staff, Defendant posed a question to the deputy—“Check this out, Sherman. What if that thing was mine?”—from which, in context, the jury could reasonably infer that Defendant had knowledge of thе contraband found, i.e., the weapons hidden in the bottom bunk area. Significant to our analysis are Defendant’s expression of hatred and anger toward another inmate, his acknowledgement that he wanted to do harm to that person, and his stated appreciation that prison staff conducted the search when they did, i.e., before Defendant “lost it” and “something . . . [went] down.” These statements, coupled with Defendant’s acknowledgement that had prison staff asked, he would have told them to “pull all the mattresses and that would have been the end of it[,]” provided sufficient evidence from which the jury could infer that Defendant had knowledge of the weapons. See State v. Jimenez, 2017-NMCA-039, ¶ 48, 392 P.3d 668 (holding that the state can prove knowledge through circumstantial evidence demonstrating “that the defendant knows of the presence and character of the item possessed” (internal quotation marks and citation omitted)).
{11} Further, and with respect to the essential element of control, prison staff discovered numerous items bearing Defendant’s name in the bottom bunk where the weapons were discovered, supporting the conclusion that the bunk was, indeed, Defendant’s. Additionally, both weapons were easily accessible to—and, indeed, only within arm’s reach of—the person occupying that bunk, i.e., Defendant. See Barber, 2004-NMSC-019, ¶ 27 (providing that “[e]vidence of control includes the power to produce or dispose of” the contraband). This takes on added import in light of the testimony elicited from a fellow inmate indicating that if one inmate had an issue with another inmate, the first inmate was likely to keep a weapon in his mattress for easy access.
{12} Becausе there is evidence from which the jury could reasonably infer that Defendant had knowledge of and control over the weapons, we conclude that Defendant’s convictions are supported by substantial evidence.
II. Double Jeopardy
{13} Defendant contends that his convictions violate his right to be free from double jeopardy. Whether multiple convictions violate the prohibition against double jeopardy involves “a constitutional question of law which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. “The Double Jeopardy Clause protects criminal defendants against multiрle punishments for the same offense.” State v. Bernard, 2015-NMCA-089, ¶ 15, 355 P.3d 831 (alteration, internal quotation marks, and citation omitted). There are two types of “multiple punishments” cases: “double description” cases, “in which a defendant’s single course of conduct results in multiple charges under different criminal statutes,” and “unit-of-prosecution” cases, “in which a defendant faces multiple charges under the same criminal statute for the same conduct.” Id. ¶ 16. This is a unit-of-prosecution case.
{14} In unit-of-prosecution cases, the “relevant inquiry . . . is whether the [L]egislature intended punishment for the entire course of conduсt or for each discrete act.” Swafford v. State, 1991–NMSC–043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. To discern the Legislature’s intent, we apply a two-step analysis. See Bernard, 2015-NMCA-089, ¶ 17. “First, we review the statutory language for guidance on the unit of prosecution.” State v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. If the plain language of the statute is unclear or ambiguous, “we move to the second step, in which we determine whether a defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments under the same statute.” Id. If the second step of the analysis does not demonstrate sufficient distinctions between the acts, we apply the rulе of lenity and presume that the Legislature did not intend to impose multiple punishments where the acts are not sufficiently distinct. See State v. Tidey, 2018-NMCA-014, ¶ 16, 409 P.3d 1019 (explaining that “the rule of lenity favors a single unit of prosecution and disfavors multiple units of prosecution” (alterations, internal quotation marks, and citation omitted)); Bernard, 2015-NMCA-089, ¶ 17 (explaining that “[t]he rule of lenity requires that we interpret the statute in the defendant’s favor by invoking the presumption that the Legislature did not intend to create separately punishable offenses”).
The Unit of Prosecution in Cases Involving Crimes of Possession
{15} As our Suрreme Court recently observed, “the unit of prosecution defines how many offenses the defendant has committed.” State v. Ramirez, 2018-NMSC-003, ¶ 46, 409 P.3d 902 (internal quotation marks and citation omitted). Ordinarily, the unit of prosecution is defined by “the actus reus, the physical conduct of the defendant.” Id. (internal quotation marks and citation omitted). However, when it comes to possession-based crimes, our jurisprudence suggests the unit of prosecution may be defined in two ways: (1) by the physical conduct of the defendant—i.e., the act of possessing contraband as of a specific point in time—or (2) by the individual items possessed. Compare State v. Olsson, 2014-NMSC-012, ¶¶ 3, 47, 324 P.3d 1230 (considering whether possession of multiple, distinct images of child pornography were separately punishable acts or “one unitary act of possession[,]” and concluding that the defendants could “only be charged with one count of possession”), and Tidey, 2018-NMCA-014, ¶¶ 9, 15 (applying a unit-of-prosecution analysis to determine whether the simultaneous possession of two different types of drug paraphernalia constituted “one unitary act” or separately punishable acts, and concluding that possession of two items of contrabаnd was a single punishable act), with Bernard, 2015-NMCA-089, ¶¶ 16, 31 (considering whether the defendant’s possession of four stolen vehicles “constitutes a single course of conduct that is punishable as only one violation” and concluding that the defendant could be punished separately for each stolen vehicle he possessed). The recent cases cited above, addressing double jeopardy challenges to multiple convictions under possession statutes, have all concluded that the statute under consideration was ambiguous as to the unit of prоsecution. See Olsson, 2014-NMSC-012, ¶ 23 (concluding that the plain meaning as to the proper unit of prosecution under the possession of child pornography statute,
{16} Here, the State concedes that the plain language of
{17} As noted above,
“Indicia of Distinctness” Analysis
{18} To determine whether sepаrate convictions are justified under
{19} As to time and space considerations, the State argues that “the evidence demonstrates that Defendant’s possession of each weapon commenced at a different time—at the distinct moments whеn Defendant created each weapon[,]” thereby allowing separate punishment for “distinct and separate[] . . . violations of [Section] 30-22-16.” Yet the State fails to point to anything in the record establishing—or even supporting the inference—that it was Defendant who created either of the weapons. Granted, Daniel Webb, an officer at the detention center, testified that he found evidence in a shower stall, some eighty feet from Defendant’s bunk, suggesting that the mop weapon had been crafted there. However, the State рoints to no testimony or evidence from which the jury could reasonably infer that Defendant was the person who created either of the weapons, nor does our review of the record reveal any such evidence. Moreover, the State made no claim or showing that the shower area was in Defendant’s exclusive control or that Defendant was seen or admitted to creating either weapon. And while the State points out that Defendant made “incriminating statements” to Deputy Sherman—i.e., “What if that thing is mine?” and “I could lie and say ‘It аin’t mine’ . . . [o]r I could say, ‘Yes, it’s mine’ ”—those statements merely establish that Defendant had knowledge of the existence of a weapon or weapons, not that he created either of the weapons later found in his possession. In the absence of any such evidence, we reject the State’s unsupported contention that Defendant’s
{20} With respect to space considerations, it bears emphasis that while the weapons were found in two different places in Defendant’s bunk area—the razor weapon in the upper support beam above Defendant’s sleeping area and the mop weapon inside Defendant’s mattress—both were discovered near one another within Defendant’s limited bunk sрace. That the weapons were secreted and found in separate hiding places each within an arm’s-length of the other does not reflect possessory conduct sufficiently distinct in nature to support multiple punishments. See Bernard, 2015-NMCA-089, ¶ 27 (concluding that time and space considerations failed to establish the distinctness of the defendant’s acts of possessing four stolen vehicles even where there was evidence that the defendant may have possessed certain vehicles at different times and in different locations). Indeed, the аbsence of distinct acts suggested by the weapons’ proximity to one another is reflected in both the fact that they were found during the same search and that the discovery led to identical jury instructions with only the name of the weapon differing. See Tidey, 2018-NMCA-014, ¶ 13 (concluding that there was “an insignificant indicia of distinctness” supporting separate punishments where separate items of drug paraphernalia were “simultaneously found” and the jury received the same instruction as to both counts of possession); Bernard, 2015- NMCA-089, ¶ 27 (noting that the four stolen vehicles were reсovered “from the same location” and that the jury “was not instructed to consider whether [the d]efendant possessed the vehicles at separate times and locations”). Thus, we agree with Defendant that, based on the evidence adduced at trial, the conduct underlying the two possession charges was the single act of possessing two different weapons at the same time, and that neither time nor space considerations support multiple punishments here.
{21} We next consider whether the objects and results involved in this case supрly the necessary indicia of distinctness to allow the conclusion that the Legislature intended a prisoner in Defendant’s position to be punished separately for each weapon possessed. See Bernard, 2015-NMCA-089, ¶ 26 (“If a case cannot be resolved from time and space considerations, then resort must be had to the quality and nature of the acts or to the objects and results involved.” (internal quotation marks and citation omitted)). Turning first to the objects involved, the two makeshift weapons found to be in Defendant’s possession, the razor weаpon and the mop weapon, are more similar than different. The fact that one weapon was designed to inflict harm through slashing and the other designed to injure through stabbing does not provide the differentiation necessary to support separate convictions in this case. That is because our Legislature has defined “deadly weapon” as including, inter alia,
any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons[.]
{22} Turning next to the results involved, the only “result” of Defendant’s possession of the razor and mop weapons was the completed act of possession itself, a violation of
{23} As a final matter, we briefly address the State’s argument centering on the “policy considerations” underlying and the “interests protected” by
armed prisoners”). However, the relevant inquiry does not involve a determination of the legislative purpose and intent in enacting the statute itself, but rather whether the Legislature intended for multiple punishments to be imposed under the specific facts of a given case. As previously discussed, we cannot say that that there are sufficient indicia of distinctness to support
CONCLUSION
{24} We conclude that sufficient evidence supports Defendant’s convictions under
{25} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
BRIANNA H. ZAMORA, Judge