STATE V. CURRY, 1988-NMCA-031, 107 N.M.
133, 753 P.2d 1321 (Ct. App. 1988)
State of New Mexico, Plaintiff-Appellee,
vs.
Steve Curry, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1988-NMCA-031, 107 N.M. 133, 753 P.2d 1321
APPEAL FROM THE DISTRICT COURT OF CURRY
COUNTY, REUBEN E. NIEVES, District Judge
Petition for Writ of Certiorari Denied
April 26, 1988
Jacquelyn Robins, Chief Public Defender,
Hollis A. Whitson, Assistant Appellate Defender, Santa Fe, New Mexico,
Attorneys for Defendant-Appellant.
Hal Stratton, Attorney General, Santa Fe,
New Mexico, Attorney for Plaintiff-Appellee.
{1} Defendant appeals from
his convictions for attempted trafficking by possession with intent to
distribute, and conspiracy. Our calendar notice proposed summary affirmance.
Defendant filed memorandum in opposition an a motion to amend the docketing
statement to rephrase his first issue. Defendant's motion to amend the docketing
statement is granted. Not persuaded by defendant's memorandum, we affirm his
convictions.
{2} A courier for Federal
Express attempted to deliver a package addressed to defendant at a Clovis
address. The package was addressed to "Steve Curry, 1201 W. 6th Street,
Apt. # 8, Clovis, New Mexico 88101." The courier was unable to get an
answer at apartment No. 8, so he posted a delivery notice on the door of
apartment No. 8 and left the package with Ms. Chavez, who lived in apartment
No. 9. While Ms. Chavez was cleaning house, her three-year-old daughter opened
the package and brought to the mother a bag containing a white powdery
substance. Ms. Chavez believed the white powder to be cocaine. She removed the
delivery notice from the door of apartment No. 8 and then went to the Clovis
Police Department, where she turned over the delivery notice and the package to
Officer Casarez. Ms. Chavez then returned to her apartment.
{3} Officer Casarez turned
the package over to Detective Rice of the Clovis Police Department
{*134} Narcotics Section. The package
contained a 9" x 12" envelope, two letter-size envelopes containing
plastic bags of white powder, and one letter-size envelope containing
twenty-four empty plastic bags, approximately 1" x 2" in size. Detective
Rice tested the two bags containing white powder. The tests were positive for
cocaine and amphetamine.
{4} That afternoon, while Ms.
Chavez was at her apartment with a friend, Ms. Valencia, defendant came to the
door. Ms. Valencia answered the door, at which time defendant stated that he
had called Federal Express about a package and learned it had been left with a
"T. Chavez" at apartment No. 9. He asked Ms. Valencia if there was
any package for him and she informed him that there was not. Defendant told her
to look for a package, which she did, and she again told him there was no
package. Detective Rice telephoned Ms. Chavez, at which time Ms. Chavez
informed him that defendant had been to her apartment. Detectives Rice and
Farkas then drove to the apartments at 1201 W. 6th Street in an unmarked
vehicle and parked.
{5} Ms. Chavez and Ms.
Valencia attempted to leave apartment No. 9 when they were confronted by
defendant. Defendant told Ms. Chavez that Federal Express had told him his
package had been delivered to her. Ms. Chavez informed defendant she had placed
the package between the screen and the front door of apartment No. 8. Ms.
Chavez and Ms. Valencia got in their car and left. Detectives Rice and Farkas
followed them to the State Police Complex where the details of the latest
encounter with defendant were related to the detectives. When Ms. Chavez and
Ms. Valencia returned to the apartments, defendant again confronted Ms. Chavez
and asked about the package. Detective Rice obtained an arrest warrant and
defendant was arrested later that evening.
1. Whether Attempted Trafficking by Possession with Intent
to Distribute is a Crime Under New Mexico Law
{6} Defendant maintains that
an attempted violation of NMSA 1978, Section
30-31-20(A)(3) (Repl. Pamp.1987)
is not a crime under New Mexico law. Under Section 30-31-20(A)(3), trafficking
is defined as "possession with intent to distribute any controlled
substance * * * *" Under the general attempt statute, NMSA 1978, Section
30-28-1 (Repl. Pamp.1984), "[a]ttempt to commit a felony consists of an
overt act in furtherance of and with intent to commit a felony and tending but
failing to effect its commission." Defendant argues that without
possession there can be no intent to distribute. We disagree.
{7} The package containing
cocaine was addressed to defendant and he attempted to pick up the package on
three different occasions. It is reasonable to infer that defendant intended to
possess the package based on the fact that it was addressed to him and he tried
to pick up the package. Defendant does not dispute that the amount of cocaine
found in the package was inconsistent with personal use. Intent to distribute
may be inferred when the amount of a controlled substance possessed is inconsistent
with personal use.
See State v. Donaldson, 100 N.M. 111,
666 P.2d 1258
(Ct. App.1983);
State v. Quintana, 87 N.M. 414,
534 P.2d 1126 (Ct.
App.),
cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).
{8} Based on the amount of
cocaine found in the package, it may be inferred that defendant intended to
distribute the cocaine. Defendant failed to effect the crime of possession with
intent to distribute because he never actually possessed the package.
Nevertheless, the fact that defendant never actually possessed the package does
not negate his intent to possess the package, as evidenced by defendant
attempting to pick up the package, nor does it negate his intent to distribute
the cocaine, as is evidenced by the amount of cocaine found in the package.
Therefore, it is possible for a person to intend to possess a controlled
substance and further to intend to distribute that controlled substance without
the person actually possessing the controlled substance.
{9} Defendant argues that one
cannot attempt to have an intent. Defendant is not
{*135}
charged with attempted intent to distribute, but with attempted possession
with intent to distribute. The attempt in this case is the attempt to possess
the cocaine. As illustrated above, the attempt to possess the cocaine can be
inferred from defendant's attempt to pick up the package and the intent to
distribute can be inferred solely from the amount of cocaine.
{10} Arguing against his
conviction for attempted trafficking, defendant points out that other
jurisdictions have specific legislative enactments proscribing attempted
trafficking. Although New Mexico has no specific statute proscribing attempted
trafficking, our supreme court has applied the general attempt statute to the
offense of trafficking cocaine by distribution.
See State v. Lopez, 100
N.M. 291,
669 P.2d 1086 (1983). Since defendant can intend to distribute a
controlled substance without actually possessing the substance, we see no
reason why the general attempt statute should not be applied to the offense of
trafficking by possession with intent to distribute.
2. Constitutionality of Section 30-31-20(A)(3)
{11} Defendant contends that
Section 30-31-20(A)(3) has been applied in an overbroad and unconstitutional
manner. A statute is unconstitutionally overbroad if it not only forbids
conduct constitutionally subject to proscription, but also sweeps within its
ambit those actions ordinarily deemed to be constitutionally protected.
State
v. Gattis, 105 N.M. 194,
730 P.2d 497 (Ct. App.1986). Defendant has failed
to show that Section 30-31-20(A)(3) sweeps within its ambit actions that would
ordinarily be deemed to be constitutionally-protected activities.
{12} Based on the reasons
stated above, we affirm defendant's convictions.
WILLIAM W. BIVINS, Judge, LORENZO F. GARCIA, Judge, RUDY
S. APODACA, Judge, CONCUR.