Lead Opinion
{1} Defendant, Reymundo Carlos Garcia, appeals from his convictions for being a felon in possession of a firearm, contrary to NMSA 1978, § 30-7-16 (1981, as amended through 1987) and for possession of an alcoholic beverage in an open container while in a motor vehicle, contrary to NMSA 1978, § 66-8-138 (1989). We reverse Defendant’s conviction for being a felon in possession of a firearm on the ground that the evidence was insufficient to establish beyond a reasonable doubt that Defendant was in possession of a firearm; we affirm Defendant’s conviction for possession of an alcoholic beverage in an open container.
BACKGROUND
{2} At around midnight on the evening of April 25, 2001, Sgt. Jason Hatch and Officer John Emmons of the Bosque Farms Police Department and Deputy Donald Derrick of the Valencia County Sheriffs Department were taking a coffee break at a convenience store. They observed a car slowly drive through the parking lot. Defendant was seated in the front passenger’s seat of the car, a 1986, two-door Buick Regal sedan. Sgt. Hatch became suspicious because the car displayed a “dealer demonstration tag”
{3} Before Sgt. Hatch’s car had come to a full stop, Defendant left the subject car and faced to the rear with the right side of his body “slouched down towards the side of the vehicle.” Defendant looked at Sgt. Hatch, giving him a “thousand yard stare .... [k]ind of a blank look ... almost as if ... just looking through me as if I’m not there.” Because of the way in which Defendant was leaning against the car, Sgt. Hatch could not see the right side of Defendant’s body. Sgt. Hatch left his patrol car, drew his gun holding it at “a low ready position,” and ordered Defendant back into the car. Defendant did not immediately comply and Sgt. Hatch again ordered Defendant to get back into the car.
{4} When Defendant was again seated in the car, Sgt. Hatch approached the driver and requested a driver’s license, registration, and proof of insurance. By this time Officer Emmons and Deputy Derrick had arrived. The driver had a New Mexico I.D. card, but no driver’s license, registration, or proof of insurance. After learning that the driver had no license, Sgt. Hatch directed Officer Emmons to identify the passenger and determine whether the passenger had a valid driver’s license. Defendant told Officer Emmons that he was “Ray[ — jReymundo.” Officer Emmons ran a check on Defendant by radio and the dispatcher identified Defendant as Reymundo Garcia.
{5} As Officer Emmons was writing out citations to the driver, Sgt. Hatch stood at the rear of the car on the passenger’s side. He observed a handgun in a holster on the floor of the car protruding from beneath the rear of the passenger seat. The occupants were ordered from the car and were frisked and handcuffed. Sgt. Hatch observed a one inch by five inch by one-quarter inch clip of bullets lying in the “palm” of the front passenger seat, which was badly worn and covered with a towel or other cloth. Next to the gun on the floor was a partially empty bottle of beer. The officers seized the gun, which was loaded, and the extra clip. Deputy Derrick, who was familiar with the type of gun, unloaded it. The beer bottle was not seized. Defendant denied any knowledge of the handgun, explaining to the officers that because of prior felony convictions he was not allowed to be around firearms. Defendant admitted that he had been drinking in the car. Because Defendant had admitted to a prior felony, the officers ran his name through records a second time and were informed by dispatch that Defendant’s record showed a prior felony conviction. Defendant was charged with concealing identity, an open container violation, and being a felon in possession of a firearm. In addition to various Motor Vehicle Code violations, the driver was charged with negligent use of a firearm.
{6} Defendant’s case was tried to the court without a jury. Neither occupant of the car testified at trial. The State called Sgt. Hatch and Deputy Derrick as its only witnesses. The State offered no evidence as to who actually owned the car or how the driver and Defendant came to be in it. There was no evidence of the nature of the relationship of the driver and Defendant. The State stipulated that no fingerprints were found on the gun. Defense counsel stipulated that Defendant was a convicted felon. Defendant objected on hearsay grounds to Sgt. Hatch’s testimony as to what Defendant had told Officer Emmons. The district court ruled that Sgt. Hatch’s testimony as to Defendant’s statements to Officer Emmons would be admitted “just to establish why he’s doing what he did.” Toward the end of the State’s direct examination of Sgt. Hatch, the State informed the trial court that it would not proceed on the concealing identity charge. At the conclusion of the State’s case, the trial court denied Defendant’s motion for a directed verdict on the remaining charges. Defendant did not put on any evidence. The trial court found Defendant guilty of possession of a firearm by a felon and possession of an open container containing an alcoholic beverage in a motor vehicle.
1. Sufficiency of the Evidence of Possession of a Firearm
{7} Section 30-7-16(A) makes it unlawful for a felon to “possess” a firearm. The State concedes that it did not prove that Defendant had the gun on his person. The State relies on a theory of “constructive” possession: i.e., that Defendant knew the gun was present and exercised control over it. See State v. Morales,
{8} Sufficieney-of-the-evidence claims in criminal cases are reviewed under the following standards:
[W]e review the record, marshaling all evidence favorable to [the] trial court’s findings. If evidence is in conflict, or credibility is at issue, we accept any interpretation of the evidence that supports the trial court’s findings, provided that such a view of the evidence is not inherently improbable. We determine whether the evidence supports any conceivable set of rational deductions and inferences that logically leads to the finding in question. We must be satisfied that the evidence was sufficient to establish the facts essential to conviction with the level of certainty required by the applicable burden of proof. To support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached a subjective state of near certitude of the guilt of the accused.
State v. Wynn,
{9} In conducting sufficiency-of-the-evidence review in a criminal case, we are constitutionally required to take into account the heightened, beyond-a-reasonable-doubt burden of proof: evidence that is sufficient to allow a rational juror to make a finding adverse to a defendant under a preponderance-of-the-evidenee standard will not necessarily suffice to allow a rational factfinder to reach the subjective state of certitude required by the beyond-a-reasonable-doubt standard. State v. Garcia,
{10} The requirement of proof beyond a reasonable doubt derives from the distinction between “demonstrative” and “moral” evidence. Victor v. Nebraska,
Demonstrative evidence has for its subject abstract and necessary truths, or the unchangeable relations of ideas. Moral evidence has for its subject the real but contingent truths and connections, which take place among things actually existing ....
Id. (quoting 1 Works of James Wilson 518 (J. Andrews ed. 1896) (ellipsis in quoted material and internal quotation marks omitted)). Proof beyond a reasonable doubt is equivalent to proof “to a moral certainty,” and refers to the highest degree of confidence with which an historical or physical fact can be known. Id. at 11-12,
{11} The requirement of proof beyond a reasonable doubt “is a prime instrument for reducing the risk of convictions resting on factual error.” In re Winship,
There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error isreduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt. To this end, the reasonable-doubt standard is indispensable, for it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.
Id. at 364,
{12} Applying the standards set out above, we are persuaded that the State’s evidence would have permitted a rational factfinder to rule out beyond a reasonable doubt everyone but Defendant and the driver as the source of the handgun found under Defendant’s seat. The State’s problem is that its own uncontradicted evidence establishes that the driver had roughly equal access with Defendant to the location where the gun was found. Thus, the State’s own evidence supports the competing theory that the driver, not Defendant, placed the gun behind Defendant’s seat. Cf. Morales,
{13} Cases involving prosecutions for unlawful possession or transportation of a weapon or contraband when the defendant had non-exclusive access to the location where the weapon or contraband was found underscore the difficulty of conceptualizing reasonable doubt and of articulating standards for deciding when a reasonable doubt is present as a matter of law. See, e.g., State v. Sizemore,
{14} Not every imaginable doubt is a reasonable doubt. Victor,
{15} The State argues that the location of the gun behind Defendant’s seat permits an inference of control based upon Defendant’s closer physical proximity to the gun. Of course a roughly equal inference would attribute possession to the driver based upon the inference that the driver of a car controls the objects that are introduced into the car. Cf Smith,
{16} We emphasize that our conclusion that the evidence of constructive possession was insufficient is not based on disbelief of the State’s witnesses. The trial court, as factfinder, was entitled to accept the testimony of the State’s witnesses as both truthful and accurate. See State v. Till,
It is true that “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,” but it is equally true that if a hypothesis of innocence is sufficiently reasonable and sufficiently strong, then a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.
{17} The Dissent asserts that “the issue for this Court to resolve upon review is not whether it was ‘sufficiently likely’ that the driver put the gun under Defendant’s seat, but whether, viewing the evidence in the light most favorable to the prosecution and considering the reasonable inferences to be drawn from the undisputed facts, ‘any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt.’ ” Dissent ¶ 36. The Dissent’s statement of the standard for determining the sufficiency of the evidence is largely circular: evidence is sufficient if it allows a rational factfinder to find a fact beyond a reasonable doubt ... a rational factfinder is a person who will not find a fact established beyond a reasonable doubt unless he or she is presented with sufficient evidence ... the presence of a reasonable doubt means that a rational factfinder has not been provided sufficient evidence. We agree with the Dissent that due process is not violated by a conviction that is supported by substantial evidence, made by a rational factfinder drawing reasonable inferences to the exclusion of a reasonable doubt of innocence. Stating the standard is the easy part; the difficulty comes in deciding and explaining why the evidence was or was not “substantial”, why the factfinding was or was not “rational,” why inferences necessary to sustaining the conviction were or were not “reasonable,” and ultimately, whether or not the State’s evidence precludes any reasonable doubt of innocence.
{18} As we have pointed out before, “beyond a reasonable doubt” refers to the highest level of confidence with which an historical or physical fact can be known. We are confident that the Dissent would agree that evidence that two convicted felons were found in a car with a gun on the floor behind the front seat cannot, without more, support a conviction of either occupant for illegal possession. On such limited facts a rational factfinder would not claim to know with near certitude who controlled the gun anymore than he or she would claim to know whether heads or tails will come up on the next flip of a coin, and a conviction based on such limited evidence would be overturned, notwithstanding the broad latitude traditionally afforded factfinders in drawing inferences from the evidence.
{19} Here, the State’s case was not quite as bare-bones as the two-men-in-a-car-with-a-gun hypothetical described above. The State’s case was substantially strengthened in comparison to the two-men-in-a-car hypothetical by evidence that a spare clip of bullets was found in the palm of the passenger’s seat. This evidence would support a reasonable inference that Defendant was aware that a gun was present in the car. However, knowledge and control are conjunctive requirements for constructive possession. In the present ease, the sufficiency of the evidence supporting a finding of constructive possession ultimately depends upon the sufficiency of the evidence establishing that Defendant exercised control over the gun.
{20} Whether a factfinder is rational in making a finding depends in part on the level of confidence the factfinder claims to have in the finding. On a given quantum of evidence it may be rational to assert that one knows a fact to be more likely than not, yet on the same evidence it can be irrational to assert that one knows that fact with near certainty. As we noted above, if this were a civil case and the State merely had to prove that it was more likely than not that Defendant exercised control over the gun, it would be much more difficult to disagree with the Dissent’s assertion that the record contains sufficient evidence of constructive possession. But this is a criminal case, and we must decide whether, on the State’s evidence, a trier of fact would be acting rationally in maintaining that he knows with a level of confidence amounting to near certitude that Defendant exercised control over the gun. “[A] properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury.” Jackson v. Virginia,
2. Section 66-8-138 Violation
{22} Defendant argues that his convictions were based on evidence obtained in the course of an unconstitutional warrant-less search of the ear. Our conclusion that the evidence was insufficient to support Defendant’s conviction for possession of a firearm by a felon renders this point moot as to that conviction. Therefore, we consider Defendant’s claims under the Fourth Amendment to the United States Constitution and Article II, § 10 of the New Mexico Constitution only as they may affect the conviction for possession of an alcoholic beverage in an open container while in a motor vehicle.
{23} A ruling on a motion to suppress presents a mixed question of fact and law. State v. Vandenberg,
{24} Prior to trial, Defendant filed a motion to suppress evidence, arguing that the warrantless entry into the car violated Defendant’s rights under the Fourth Amendment and Article II, § 10. Defendant referred the trial court to State v. Gomez,
{25} Sgt. Hatch testified that at the time the gun was seized, both the driver and Defendant were out of the car and had been “secured.” He conceded that he had not requested consent to search the car, that there were three officers present, and that there was no reason why someone could not have obtained a search warrant. Sgt. Hatch testified to his belief that the seizure of the gun was justified because it was in plain view. Defendant argued that the trial court should suppress “all evidence following the search of the car” due to the failure of the officers to obtain a warrant and the absence of exigent circumstances.
{26} The State responded that the gun and magazine were in plain view and that because of safety concerns it was reasonable for the officers to retrieve the gun. The State initially disclaimed any reliance upon a theory of exigent circumstances, whereupon the trial court interjected “Well you better be claiming exigent circumstances, or you’re going to lose this motion.” The trial court denied the motion to suppress, ruling that “I’m going to find that there is [sic] exigent circumstances because I think in the nature of things, a loaded gun even though the suspects are handcuffed, creates a situation where something could happen, and that gun should be secured.”
{28} The State asserts that the seizure of the gun was justified because the presence of a firearm in an automobile during a late-night traffic stop automatically supplies grounds to believe that the subject is armed and dangerous. We do not agree. To justify a frisk of a person or a protective sweep of an automobile on officer safety grounds, the officer must be confronted with circumstances that support a reasonable suspicion that the subject is both armed and dangerous. Vandenberg,
{29} Our holding takes into account the United States Supreme Court’s decision in Adams v. Williams,
{30} Notwithstanding our rejection of the per se rule proposed by the State, we conclude that in the present case, the circumstances facing the officers supported a reasonable suspicion that Defendant might pose a danger to the officers. We find particularly persuasive Defendant’s failure when confronted by an officer with his gun di'awn to immediately comply with the officer’s instructions to get back into the car. This behavior on its face suggests aggressiveness
{31} Defendant points out that by the time the gun was seized, both the driver and Defendant had been frisked, handcuffed and detained away from the car. Defendant argues that under these circumstances no reasonable officer could have believed that the driver or Defendant continued to present a threat to officer safety, and therefore officer safety did not justify the entry into the car to seize the gun.
{32} An officer’s conduct during an investigatory detention must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio,
{33} Defendant also argues that we should reverse the denial of his motion to suppress because the officers believed that they could seize the gun inside the car simply because it was in plain view from outside the car. We agree with Defendant that the officers’ understanding of the law was erroneous: even where an object is in plain view inside a car, a warrantless entry into the car to seize the object is valid only where the entry is justified by exigent circumstances or some other exception to the warrant requirement. State v. Jones,
{34} The entry into the car to seize the gun is important to the Section 66-8-138 conviction because it was in the course of seizing the gun that the arresting officer observed the open beer bottle on the floor of the car next to the gun and it apparently was in response to the recovery of the gun and the discovery of the beer bottle that Defendant admitted that he had been drinking. At trial, the trial court explained that it was basing Defendant’s conviction on the open container charge solely on Defendant’s admission as recounted by the arresting officer. In view of our conclusion that the warrant-less entry into the car to seize the gun was supported by exigent circumstances — the officers’ reasonable suspicion that Defendant was armed and dangerous — we hold that Defendant’s admission that he had been drinking
CONCLUSION
{35} We reverse Defendant’s conviction for possession of a firearm by a felon; we affirm Defendant’s conviction for possession of an alcoholic beverage in an open container while in a motor vehicle. We remand for entry of an amended judgment consistent with this opinion.
{36} IT IS SO ORDERED.
Notes
. The record indicates that the officers did not discover that Defendant was a convicted felon until after they had seized the gun. Thus, at the point that they seized the gun, they had no reason to believe that it was unlawful for Defendant to possess a firearm.
. We have previously recognized that the State bears the burden of demonstrating the relevance of an officer’s training and experience to search and seizure issues. State v. Duran,
Concurrence Opinion
(concurring in part and dissenting in part).
{37} I concur in part and dissent in part. I agree with the Majority that the officers’ search of the car was proper and that Defendant’s conviction for possession of an open container of alcohol in a motor vehicle should be affirmed. I also consider Defendant’s chain of custody claim to be without merit. However, I cannot concur in the Majority’s reversal, on the basis of insufficient evidence, of Defendant’s conviction for possession of a firearm by a felon. Because I believe the Majority has inappropriately reweighed the evidence and then substituted its judgment for that of the trial court, I must respectfully dissent.
{38} An appellate court reviews the sufficiency of the evidence under a substantial evidence standard. State v. Sutphin,
{39} To establish the essential elements of the crime, the State was required to prove that Defendant possessed a firearm and that he was a felon. Section 30-7-16(A); see State v. Haddenham,
{40} The direct evidence before the trial court, presented by the undisputed testimony of the police officers, was that upon being stopped, Defendant jumped out of the passenger side of the car and slouched down at the side of the car, concealing his right side and hand from the officers; did not readily obey the officer’s instructions to get back in the car; and initially gave the officers a false name. The gun and its holster were protruding from under the back of Defendant’s
{41} Notwithstanding these facts, however, the Majority has arrived at a different conclusion, deciding that it was “sufficiently likely” the driver may have placed the gun under the passenger seat. Majority Op. ¶ 14. The Majority also appears to fault the State for offering no evidence to explain the ownership of the car, the relationship of its occupants to one another, or how they came to be in the car, id. ¶ 6, although these facts are not elements of the crime of felon in possession of a firearm. The Majority reversed Defendant’s conviction because it has persuaded itself that “the State’s evidence and the inferences from that evidence were insufficient to eliminate a reasonable doubt that the driver placed the gun behind Defendant’s seat.” Id. ¶ 15.
{42} In so holding the Majority has abandoned our appellate standard of review. Instead, it has created a conflicting supposition, weighed this newly created supposition against the facts and inferences drawn by the proper factfinder-the trial court-and then concluded that this supposition created reasonable doubt. However, the issue for this Court to resolve upon review is not whether it was “sufficiently likely” that the driver put the gun under Defendant’s seat, but whether, viewing the evidence in the light most favorable to the prosecution and considering the reasonable inferences to be drawn from the undisputed facts, any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt. See Sanders,