STATE V. YANEZ, 1976-NMCA-073, 89 N.M.
397, 553 P.2d 252 (Ct. App. 1976)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Willie YANEZ, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1976-NMCA-073, 89 N.M. 397, 553 P.2d 252
Jan A. Hartke, Acting Chief Public
Defender, Bruce L. Herr, Appellate Defender, Reginald J. Storment, Asst.
Appellate Defender, Santa Fe, for defendant-appellant.
Toney Anaya, Atty. Gen., Raymond
Hamilton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
WOOD, C.J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concur.
{1} Convicted of possession
of morphine contrary to § 54-11-23(A), N.M.S.A. 1953 (Repl. Vol. 8, pt. 2,
Supp.1975) defendant appeals. The appeal was assigned to the legal calendar on
the basis of the facts set forth in the docketing statement. Only two of the
issues stated in the docketing statement are argued. See
Novak v. Dow,
82 N.M. 30,
474 P.2d 712 (Ct. App.1970). The two issues presented for decision
involve: (1) judicial notice, and (2) possession versus use.
{2} The following facts are
those set forth in the docketing statement. Agent Moore observed what he
suspected was a "score" between defendant and another. After "scoring",
defendant went to a drug store and purchased two hypodermic needles. Agent
Dunlap interviewed the druggist and notified Agent Moore that the defendant
purchased the two hypodermic needles. Agent Dunlap followed the defendant to a
service station where the defendant and another entered the restroom. Agent
Moore joined Agent Dunlap and an on-the-spot inspection of the restroom
disclosed one hypodermic needle that may have been used. Furthermore, Agent
Moore saw what he suspected to be fresh needle marks on the defendant's arm.
{3} The defendant was
arrested on a charge of possession of heroin. He was transported to Memorial
General Hospital where catheterization was used to obtain a urine sample. That
sample was positive for morphine.
{4} Section 54-11-23(A),
supra, is concerned with the possession of a controlled substance. Controlled
substances are set forth in five schedules in the statutes. See §§ 54-11-5
through 54-11-10, N.M.S.A.
{*398} 1953
(Repl. Vol. 8, pt. 2, Supp.1975). Schedule I lists various opium derivatives
including but not limited to desomorphine, morphine-N-oxide, nicomorphine,
normorphine. Section 54-11-6(B), supra.
{5} The word
"morphine" does not appear in the schedules. There was no proof that
"morphine" was included within any of the items listed in the various
schedules.
{6} Schedule II includes
within the list of controlled substances "opium and opiate, and any salt,
compound, derivative or preparation of opium or opiate". Section
54-11-7(A)(1), supra.
{7} The trial court took
judicial notice that morphine is an opium derivative. Defendant contends this
was error.
{8} Stedman's Medical
Dictionary (Second Lawyers' Ed. 1966) page 1015, defines morphine as "the
chief narcotic principle (alkaloids) of opium". A similar definition is
given in Webster's Third New International Dictionary (1966).
{9} Evidence Rule 201(b)(2)
authorizes judicial notice of a fact not subject to reasonable dispute in that
it is capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. That morphine is an opium derivative
is a fact not subject to reasonable dispute. Compare,
Hartford Accident and
Indemnity Co. v. Beevers, 84 N.M. 159,
500 P.2d 444 (Ct. App.1972). The
trial court properly took judicial notice of that fact.
State v. Brennan,
89 Mont. 479, 300 P. 273 (1931);
Jefferson v. State, 34 Okl.Cr. 56, 244
P. 460 (1926).
{10} Defendant contends that
he was convicted of "use" of morphine rather than its possession and
that "use" is not prohibited by § 54-11-23(A), supra. He points out
that a statute prohibiting "use" of a narcotic drug, § 54-7-50,
N.M.S.A. 1953 (Repl. Vol. 8, pt. 2) has been repealed.
{11} This argument overlooks
the fact that defendant was convicted of possession. The presence of morphine
in defendant's urine was an item of circumstantial evidence tending to show
that defendant had possessed morphine. The presence of morphine in the urine,
together with the facts stated earlier in the opinion, was substantial evidence
that defendant possessed morphine.
Franklin v. State, 8 Md. App. 134,
258 A.2d 767 (1969);
Peachie v. State, 203 Md. 239, 100 A.2d 1 (Ct.
App.1953).
{12} The judgment and
sentence are affirmed.
HERNANDEZ and LOPEZ, JJ., concur.