State v. WoodState v. Wood
DONNELLY, Judge.
Defendant appeals his conviction for possession of cocaine, contrary to
FACTS
On April 10, 1992, Defendant was arrested on suspicion of driving while intoxicated and was transported to a local police station. As part of the booking procedure, Defendant was asked to empty his pockets. Defendant was observed removing three syringes and a soft drink bottle cap from his pants pocket. The syringes had needles still attached to them, and two of the needles were exposed. There was no visible trace of cocaine on any of the items. Two of the syringes contained a small amount of blood. The syringes and the bottle cap were seized and sent to a crime laboratory for testing. The syringes tested positive for cocaine; the bottle cap tested negative. The amount of cocaine present in the syringes was less than 0.0001 gram.
After receipt of the test results from the crime lab, Defendant was charged with possession of a controlled substance, cocaine, under
DISCUSSION
I. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction. In order for this Court to conclude that there was sufficient evidence to support a conviction, the evidence must be such that a rational jury could have found each element of the particular crime to be established beyond a reasonable doubt. State v. Garcia, 114 N.M. 269, 273-74, 837 P.2d 862, 866-67 (1992); see also State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). On appeal we do not reweigh the evidence, nor do we substitute our judgment concerning the weight or effect of the evidence for that of the fact finder. Sutphin, 107 N.M. at 131, 753 P.2d at 1319. Instead, we view the evidence in a light most favorable to support the verdict, resolving all conflicts and indulging all inferences in favor of the verdict reached below. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct.App.1993). In determining the sufficiency of the evidence we review both direct and circumstantial evidence. Id.
To convict an individual of possession of a controlled substance both possession and knowledge of possession of a controlled substance must be established.
A. Possession
In enacting
In State v. Grijalva, 85 N.M. 127, 509 P.2d 894 (Ct.App.1973), this Court considered the question of whether a “usable” amount of a controlled substance was necessary to support a conviction for possession of a controlled substance. We interpreted the words “any amount” in accordance with their plain meaning and stated that “the mere possession of any amount of the prohibited substance is enough to violate the statutory proscription.” Id. at 130, 509 P.2d at 897. Grijalva
The starting point in every case involving the construction of a statute is an examination of the language utilized by the drafters of the act. See Roth v. Thompson, 113 N.M. 331, 332, 825 P.2d 1241, 1242 (1992) (primary objective of statutory construction is to ascertain and give effect to intent of legislature). Reading the language of
This Court will not read language into a statutory provision which is clear on its face. See State v. Gutierrez, 102 N.M. 726, 730, 699 P.2d 1078, 1082 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985).
Relying in part upon cases from other jurisdictions, Defendant also argues that the legislature intended the words “any amount” to mean a “usable amount” or a “measurable amount” of a controlled substance. In advancing this contention Defendant relies on out-of-state authority. See, e.g., People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, 670 (1966) (en banc). We disagree with the rationale of the decisions Defendant urges us to follow, and, instead, we are guided by the plain language of
Defendant further argues that applying a literal interpretation of
Applying the principles discussed above to the record before us, we conclude that there was sufficient evidence of Defendant‘s possession of a controlled substance so that the jury could reasonably determine that this element of the crime was established beyond a reasonable doubt. See Garcia, 114 N.M. at 273-74, 837 P.2d at 866-67; see also State v. McCarthy, 25 Conn.App. 624, 595 A.2d 941, 944 (recognizing as majority view the view that possession of ”any amount” of a controlled substance is sufficient to uphold possession conviction), cert. denied, 220 Conn. 925, 598 A.2d 366 (1991); State v. Vance, 61 Haw. 291, 602 P.2d 933, 943-44 (1979); State v. Robinson, 426 S.E.2d 317, 318 (S.C.1992) (holding that a “measurable amount” of a controlled substance is not required to sustain a conviction of possession of narcotics; legislature intended to prohibit possession of even trace amounts). See generally Danny R. Veilleux, Annotation, Minimum Quantity of Drug Required to Support Claim That Defendant is Guilty of Criminal “Possession” of Drug Under State Law, 4 A.L.R. 5th 1 (1992 & Supp.1993).
B. Knowledge of Possession
Next, Defendant argues that his conviction must be set aside because there was insufficient evidence to establish that he knew he possessed cocaine. Based on evidence contained in the record, however, we believe that the jury in the instant case could reasonably infer that Defendant knew he possessed cocaine. In determining whether there is sufficient evidence to establish an element of a particular crime, both direct and circumstantial evidence may be considered. Ungarten, 115 N.M. at 609, 856 P.2d at 571. Our Supreme Court has recognized that because of the subjective nature of intent it is rarely established by direct evidence and generally must be proven by circumstantial or factual inferences. State v. Frank, 92 N.M. 456, 458, 589 P.2d 1047, 1049 (1979); see also
In the present case Defendant was observed removing three syringes and a soft drink bottle cap from his pants pocket. The syringes had exposed needles still attached. Two of the syringes contained blood, and test results indicated that cocaine was present. When viewing this evidence in the light most favorable to the State, the evidence was sufficient to give rise to a reasonable inference that Defendant knowingly possessed cocaine at the time of his arrest. See State v. Spates, 588 So.2d 398, 402 (La.Ct.App.1991) (“Evidence of a defendant‘s possession of narcotics paraphernalia is relevant evidence of a defendant‘s intent or guilty knowledge of his possession of controlled dangerous substances.“); cf. State v. Bejar, 101 N.M. 190, 191, 679 P.2d 1288, 1289 (Ct.App.) (syringe is item for personal use of drugs), cert. denied, 101 N.M. 189, 679 P.2d 1287 (1984). We find People v. Theel, 180 Colo. 348, 505 P.2d 964, 965-66 (1973) (en banc), and other similar cases relied on by Defendant, distinguishable in this regard. Theel involved trace amounts of drugs found in plastic bags, which the defendant was using for carrying items like food for himself and his dog while he was hitchhiking. The court in Theel also relied on a case involving trace amounts of drugs found in the lint in pockets. Both pockets and plastic bags, which have legitimate common purposes, are different from syringes with the needles intact, carried around loose by persons in their clothing.
II. Constitutionality of Statute
Defendant additionally argues that his conviction for possession of a controlled substance should be reversed because the phrase “any amount” is unconstitutionally vague as applied to him under the facts of this case.
A statute is unconstitutionally vague if it does not provide a person of
We believe the language of
III. Double Jeopardy
We turn next to Defendant‘s contention that his conviction for possession of cocaine violates the double jeopardy provision of the New Mexico Constitution. See
Although
Defendant has attempted to supplement the record on this issue in two ways. First, during the calendaring process, Defendant formally requested that the record proper be supplemented to include a copy of a judgment and sentence from a prior conviction. This Court, however, denied Defendant‘s motion. See State v. Moore, 109 N.M. 119, 128, 782 P.2d 91, 100 (Ct.App.) (issues are to be raised for consideration at the trial level), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989). Defendant also attached an exhibit to his appellate brief. The exhibit, however, is not part of the record proper and will not be considered by this Court. See State v. Rogers, 90 N.M. 673, 675, 568 P.2d 199, 201 (Ct.App.) (exhibit to appellate brief not made part of the record at the trial court level will not be considered on appeal), rev‘d on other grounds, 90 N.M. 604, 566 P.2d 1142 (1977); State v. Lucero, 90 N.M. 342, 345, 563 P.2d 605, 608 (Ct.App.) (exhibits to appellate briefs neither identified nor tendered as exhibits to the trial court will not be considered on appeal), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). There being no factual basis in the record to support a double jeopardy argument, Defendant‘s argument is therefore rejected.
CONCLUSION
The judgment and sentence are affirmed.
IT IS SO ORDERED.
PICKARD and BLACK, JJ., concur.