State v. GodoyState v. Godoy
OPINION
{1} Defendant appeals from his conviction for possession of cocaine. He argues that imprecision in the jury instructions created error, that the evidence was insufficient to convict, and that the due process afforded him at the sentencing hearing was inadequate. We affirm.
BACKGROUND
{2} On November 13, 2007, a regional drug task force executed a search warrant at the residence of Defendant. Officers approached Defendant’s car after he pulled into the driveway. Humberto Martinez arrived soon after in another vehicle and pulled up behind Defendant. Defendant was ordered to step out of his car, and when he did, officers saw a plastic bag on the front seat that had the appearance of crack cocaine. Without identifying the substance, Defendant stated that it was for his “personal use.” Officers also searched the vehicle of Martinez, and in the trunk they found a baseball glove wrapped around about fifty-five grams of powder cocaine and a one-pound bag of marijuana. Martinez stated to officers, “You got me.” At trial, Martinez, who pleaded guilty to trafficking cocaine in exchange for a modified sentence, testified that the cocaine in his trunk belonged to Defendant but that he agreed to transport the drugs to Defendant’s house and take the blame if they were caught. A search of Defendant’s house also turned up a scale and a cigarette case with trace amounts of powdery residue in it.
{3} Defendant was charged with trafficking, conspiracy, and possession of drug paraphernalia. He was not convicted of trafficking or conspiracy, but a jury found him guilty of a stepped-down count of possession of cocaine, as well as possession of drug paraphernalia. Defendant was sentenced to eighteen months on each conviction, and his sentence for possession of cocaine was enhanced by eight years because he had at least three previous felony convictions within the past ten years. Defendant filed a timely appeal only on the cocaine possession charge and the enhanced sentence. We take his arguments in turn.
DISCUSSION
I. Jury Instructions and Unanimity
{4} Defendant first contends that the court failed to clarify imprecise jury instructions, thereby neglecting to instruct the jury that any conviction for the stepped-down charge of possession had to be based on the same substance considered by the jury for the trafficking offense. “The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. If not, we review for fundamental error.” State v. Benally,
{5} Defendant argues that the two substances at issue — crack cocaine found in his car and powder cocaine found in Martinez’s car — created jury confusion and that a conviction on the lesser charge of possession was appropriate only if each juror arrived at that decision after entertaining a reasonable doubt about trafficking of the same substance. In other words, Defendant argues that some jurors could have found that Defendant should be acquitted of trafficking based on the cocaine found in Martinez’s trunk but was guilty of a possession charge based on the crack cocaine found in his own car. Defendant cites no authority for the proposition that jury unanimity was required to rely on the same evidence — here, either the crack cocaine in Defendant’s car or the powder cocaine in Martinez’s car — when evaluating the greater and lesser offenses, and we find no legal authority for that argument. Where a party cites no authority to support an argument, we may assume no such authority exists. In re Adoption of Doe,
{6} In fact, New Mexico case law contradicts Defendant’s argument and supports the State’s contention that, where alternative theories of guilt are put forth under a single charge, jury unanimity is required only as to the verdict, not to any particular theory of guilt. The New Mexico Supreme Court has stated that “a jury’s general verdict will not be disturbed in such a case where substantial evidence exists in the record supporting at least one of the theories of the crime presented to the jury.” State v. Salazar,
{7} Salazar followed the lead of the United States Supreme Court for the proposition that “common law analyses of due process have not required jury unanimity on a particular theory of the crime charged.” Id. ¶ 39. The Court in Salazar relied on Schad v. Arizona, in which the United States Supreme Court stated that “[w]e have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission,” because “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.”
{8} In the case before us, similar to the murder charge in Salazar, the State brought only one count of trafficking, with only one count of the lesser included offense of possession. Although the State brought two theories of possession — based on the crack cocaine found in Defendant’s car or the powder cocaine found in Martinez’s vehicle — jury unanimity was required only on the overall verdict, not on either of the State’s alternative theories of trafficking or possession. One witness testified that a lab analysis does not distinguish between cocaine in rock form or powder form. Multiple witnesses testified that both forms of cocaine were in quantities large enough to qualify for a count of trafficking, so it is possible that jurors could have derived a step-down verdict of possession from either substance or from both of them.
{9} Defendant also points to State v. Stefani,
{10} Defendant reaches to a twenty-four-year-old Washington State sexual assault case for the argument that the above cases involving “alternative means” of committing the crime differ from cases involving “multiple acts” that require unanimity specific to the particular act that leads to the conviction. See State v. Kitchen,
{11} In the case before us, testimony established that the same substance, albeit in different forms and quantities, was found at the same time in the same vicinity, albeit in separate cars. See Altgilbers,
II. Admission of Crack Cocaine as Evidence
{12} Defendant next argues that the State failed to establish a proper foundation in order to admit the crack cocaine into evidence. The State admitted in its opening statement that an oversight in lab testing failed to scientifically establish the substance as crack cocaine. The State now contends that Defendant acquiesced in the admission of crack cocaine into evidence and may not now appeal the issue of its admission into evidence at trial.
{13} D efendant admits that this claim was not preserved at trial by raising an objection. We thus review this issue for either plain error or fundamental error. See State v. Barraza,
{14} Although the State failed to present a laboratory analysis authenticating the substance found in Defendant’s car as crack cocaine, it was able to provide other evidence to support a conviction for drug possession, such as lay opinions. See State v. Rubio,
{15} “In deciding whether the evidence was sufficient to show the substance . . . was cocaine, we may consider such circumstances as the appearance and packaging of the substance, its price, the manner of its use, and its effect on the user.” Id. at 608,
III. Sufficiency of the Evidence
{16} Defendant next claims that, even if it was proper to admit into evidence the substance found in his car, the totality of the evidence presented at trial was insufficient to support a conviction for possession. We use a substantial evidence standard of review when considering challenges based on sufficiency of the evidence. See State v. Sutphin,
{17} Defendant makes two claims regarding the sufficiency of the evidence. First, he argues that there was insufficient evidence regarding the identity of the substance found in his car. We have already addressed this claim in the previous section. Defendant also argues that the evidence was not sufficient to prove that he constructively possessed the cocaine in the trunk of Martinez’s vehicle. Defendant claims that Martinez was an unreliable witness because his plea deal showed a bias and a motivation to lie and, thus, the State’s evidence was wanting as to who possessed the cocaine in the Martinez vehicle.
{18} Defendant acknowledges that the credibility of any witness is the purview of the jurors, who are to decide how much weight is to be given to testimony. See State v. Hughey,
{19} Defendant next objects that the State failed to adequately prove that he constructively possessed the powder cocaine in Martinez’s car. The bulk of the evidence linking Defendant to the powder cocaine came from the statements of Martinez, who testified that Defendant asked him to carry the cocaine from one of Defendant’s apartments to the other and to say that it was his if “something happened.” Although Defendant glosses over evidence provided through Martinez’s statements, such testimony is sufficient to show that Defendant knew it was cocaine or believed it to he cocaine and that he knew where the cocaine was and exercised control over it. See UJI 14-3130 NMRA; State v. Bowers,
IV. Enhancement of Sentence as Habitual Offender
{20} Finally, Defendant asserts that the district court failed to provide him with adequate process when the State sought to prove his previous convictions in its bid to have his sentence extended by eight years. He contends that the State failed to make a prima facie showing of his past convictions before the sentencing hearing and that he therefore had no fair opportunity at the hearing to review and rebut the evidence of those past convictions. “Generally, we review a trial court’s sentencing determination for abuse of discretion. However, we review de novo any question regarding the legality of the sentence.” State v. King,
{21} New Mexico’s habitual offenders statute sets out mandatory sentence enhancements for defendants who have prior felony convictions that occurred up to ten years before the underlying conviction. See NMSA 1978, § 31-18-17 (2003); State v. Perry,
{22} If a defendant offers evidence of invalidity of past convictions, the burden shifts hack to the State to persuade the factfinder that the convictions or guilty pleas are valid. See id. A defendant seeking to attack the validity of any prior convictions must provide written notice to the State of an intention to do so at least ten days before the sentencing hearing. See Rule 5-509(A) NMRA; State v. O’Neil,
{23} New Mexico courts have “applied unwaveringly” the principle “that essential fairness requires that there be some pleading filed by the state ... by which a defendant is given notice and opportunity to be heard before an increased penalty can be imposed.” Caristo v. Sullivan,
{24} Here, Defendant was convicted on November 4, 2009. Eight days later, the State filed supplemental information alleging that Defendant was a habitual offender subject to sentence enhancement. The document alleged previous convictions in Florida, Texas, and New Mexico. Four days later, the State served notice of its intent to seek an enhanced sentence and demanded that Defendant give notice of his intention to attack the validity of any prior convictions. Defendant did not respond by filing a notice that he would challenge the validity of the prior convictions.
{25} At a December arraignment on the supplemental information, defense counsel denied the allegations of previous convictions and told the court that there would be “issues at least to paragraph number one and paragraph number four for sure” of the list of alleged convictions. At the sentencing hearing in January 2010, the State presented authenticated copies of seven previous convictions, at least three of which had occurred in the previous ten years, even discounting the two older ones noted at the December hearing. The State thus made its prima facie case at sentencing, as required, and Defendant did not contest those convictions. The district court then proceeded to sentencing, including the enhancement of eight years as mandated by statute. We conclude that the State’s pursuit of an enhanced sentence fell within the bounds of state statute and the rules of criminal procedure, providing adequate notice to Defendant of its intent and then proving the existence of previous convictions by a preponderance of the evidence at the sentencing hearing. The extension of Defendant’s sentence for possession by eight years was proper.
CONCLUSION
{26} For the foregoing reasons, we affirm Defendant’s conviction and sentence.
{27} IT IS SO ORDERED.
WE CONCUR: