STATE V. BRENN, 2005-NMCA-121, 138 N.M.
451, 121 P.3d 1050
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
SHAWNA MICHELLE BRENN,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Teddy L.
Hartley, District Judge
Certiorari Denied, No. 29,440, October
3, 2005. Released for publication October 25, 2005.
Patricia A. Madrid, Attorney General,
Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee
John Bigelow, Chief Public Defender, Karl
Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
JAMES J. WECHSLER, Judge. WE CONCUR: LYNN
PICKARD, Judge, CELIA FOY CASTILLO, Judge
AUTHOR: JAMES J. WECHSLER
{1} Defendant Shawna
Brenn appeals her conviction for attempted trafficking in methamphetamine by
manufacture, arguing that the evidence was insufficient to support her
conviction because it did not indicate that she took any act to manufacture
methamphetamine. Defendant had rented a hotel room in which she and another had
large quantities of materials necessary to manufacture methamphetamine, some of
which was unpackaged. We conclude that the evidence was sufficient to support
the conclusion that Defendant had not merely engaged in preparation, but had
taken a substantial step toward the manufacture of methamphetamine. As a
result, we affirm Defendant's conviction for attempted manufacturing.
{2} Two New Mexico
State Police Officers, Christina Madrigal and Eric Mendoza, narcotics agents,
had learned that an unidentified male had purchased seven gallons of iodine
from a local feed store in Clovis, New Mexico.
The officers tracked the
vehicle used by the purchaser of the iodine to a local motel where Defendant
had rented a room.
The vehicle, which was also rented to Defendant, was
in the parking lot, and the officers saw a large amount of iodine in the back
of the vehicle. The officers knocked on the motel room door and Defendant
answered. The room was filled with smoke and contained two methamphetamine
pipes.
Defendant informed the officers that she and the other person in
the room, a male named Rodriguez, were smoking methamphetamine when the
officers arrived. After obtaining Defendant's consent to search the room, the
officers found numerous items that testimony established to be essential
ingredients in manufacturing methamphetamine.
{3} Defendant was
charged with one count of attempted trafficking of methamphetamine by
manufacture, one count of possession of methamphetamine, and one count of
possession of drug paraphernalia. The possession of methamphetamine charge was
dismissed before trial, and Defendant was tried and convicted on the other two
charges. Defendant now appeals those convictions.
{4} When reviewing a
claim of insufficiency of the evidence, we determine whether substantial
evidence, either direct or circumstantial, exists to support a verdict of
guilty beyond a reasonable doubt for every essential element of the crime at
issue.
State v. Apodaca,
118 N.M. 762,
766,
887 P.2d 756, 760 (1994). A sufficiency of the evidence review involves a
two-step process.
Id. at 766, 887 P.2d at
760. Initially, we view the evidence in the light most favorable to the
verdict, resolving all conflicts and indulging all reasonable inferences in
favor of the verdict.
Id. "[T]hen we
make a legal determination of whether the evidence viewed in this manner could
justify a finding by [a] rational trier of fact that each element of the crime
charged has been established beyond a reasonable doubt."
Id. (internal quotation marks and citation
omitted);
cf. State v. Stettheimer,
94 N.M. 149, 153-54,
607
P.2d 1167, 1171-72 (Ct. App. 1980) (observing that although the defendant
alleged insufficient evidence to constitute attempt, his allegation that there
was no overt act in furtherance of the crime but instead merely preparation
raises a legal issue). We do not reweigh the evidence or substitute our
judgment for that of the factfinder.
State v.
Mora,
1997-NMSC-060, ¶ 27,
124 N.M. 346,
950 P.2d 789.
Sufficiency of the Evidence
{5} The felony of
trafficking by manufacturing consists of "manufacture of any controlled
substance enumerated in Schedules I through V or any controlled substance
analog as defined in Subsection W of Section 30-31-2." NMSA 1978, §
30-31-20(A)(1) (1990). Methamphetamine is a Schedule II controlled substance.
See NMSA 1978, §
30-31-7(A)(3)(c) (1979).
"'[M]anufacture' means the production, preparation, compounding,
conversion or processing of a controlled substance . . . ." NMSA 1978, §
30-31-2(M) (2002). The jury was instructed that, to convict Defendant of
attempt to manufacture methamphetamine, it had to find beyond a reasonable
doubt that Defendant intended to commit the crime of manufacturing
methamphetamine and that she began to do an act which constituted a substantial
part of the manufacturing but failed to commit the act of manufacturing.
See UJI
14-2801 NMRA. The jury was also
instructed that it could convict Defendant of attempt to manufacture under the
theory of accessory liability if it found, beyond a reasonable doubt, that
Defendant intended that the crime of manufacturing be committed, an attempt to
commit the crime was committed, and Defendant helped, encouraged, or caused the
attempt to commit the crime.
See
UJI
14-2820 NMRA.
{6} Defendant contends
that her conviction for attempted manufacture of a controlled substance must be
reversed because the State failed to show that Defendant did any actions in
furtherance of the crime of manufacturing methamphetamine. She claims that the
State failed to prove that she took even "one single step toward
manufacturing methamphetamine, let alone an act that constituted a substantial
part of manufacturing." She notes that the testimony at trial only
indicated that Rodriguez purchased the iodine and that there was nothing to
prove that Defendant "had anything to do with the various meth ingredients
found in the motel room." We disagree.
{7} At trial, the
officers testified in support of Defendant's conviction. Their testimony
established that an unidentified male purchased nine gallons of iodine and
drove away with seven gallons in a bright yellow Ford Escape. Madrigal
testified that the purchase of such a large amount of iodine was suspicious
and, based upon her training and experience, the purchaser of such a large
quantity usually intended to use it to cook methamphetamine. Mendoza testified
that he knew of no common use for that quantity of iodine. Both officers stated
that iodine was a key ingredient in manufacturing methamphetamine.
{8} Madrigal testified
that, after tracking the vehicle used by the purchaser of the iodine to the
Motel 6 on Mabry Drive, she saw the yellow Ford Escape, which had been rented
to Defendant, with a large amount of iodine stored in the back. The officers
knocked on the door of the motel room registered to Defendant and Defendant
answered. The room was filled with smoke and contained two methamphetamine
pipes. Defendant admitted that she and Rodriguez were smoking methamphetamine
when the officers arrived.
{9} The search of the
motel room revealed over 5000 pseudoephedrine pills, a quart of acetone,
scales, and an air purifier. Most of the pseudoephedrine pill boxes had been
opened and the pills removed from their blister packs. The loose pills were
stored in a box on the floor of the motel room while the boxes of pills were
found in a backpack.
{10} Mendoza testified
that Defendant had told him that she had been using methamphetamine since the
age of fourteen. She said that she and Rodriguez traveled to Clovis to purchase
iodine because the price there, $25 per gallon, was much less than the price in
Albuquerque, where iodine is sold for $125 per gallon. Defendant told Mendoza
that she understood that iodine was used to manufacture methamphetamine and
that she could make good money trading the iodine "to cooks or
manufacturers of methamphetamine in Albuquerque."
{11} Testimony established
that pseudoephedrine pills are cold and allergy pills which contain ephedrine,
an essential ingredient in manufacturing methamphetamine. After testifying to
his specialized training in methamphetamine labs, Mendoza testified that the
acetone, iodine, and pseudoephedrine pills are the basis for manufacturing
methamphetamine. He stated that ephedrine is a precursor to methamphetamine and
explained that the types of chemicals found in the motel room are associated
with the "red phosphorus" method of manufacturing, which requires
combining ephedrine, iodine, and red phosphorus, which are then heated.
{12} Defendant testified.
However, her testimony was neither internally consistent nor consistent with
her earlier statements to the investigating officers. At trial, Defendant
claimed that she did not know that the backpack contained pseudoephedrine
pills, and she denied telling Mendoza that he would find pills in the room.
She
later admitted seeing the packaged pills in their boxes and admitted telling
the officers that she knew about the blister packs of pseudoephedrine. She
admitted telling the officers that she knew that iodine and ephedrine are key
ingredients in manufacturing methamphetamine. However, she also claimed that
she knew nothing about the technicalities for manufacturing methamphetamine.
{13} Defendant first
denied knowing that Rodriguez was buying iodine and denied ever telling the
officers that Rodriguez intended to buy iodine or that she intended to resell
iodine in Albuquerque. She then admitted that she told Mendoza that iodine
could be sold for $125 per gallon in Albuquerque and admitted that she had told
Mendoza that she was in Clovis to purchase iodine because it is cheaper. She
explained the inconsistencies in her statements by claiming that she had only
told Mendoza about the cheaper iodine because she assumed Rodriguez would
resell the iodine once she saw the receipt for the iodine after Rodriguez
returned to the room. She admitted telling the officers that she started using
methamphetamine at age fourteen, but claimed that this was a lie and that she
had only been regularly using methamphetamine for about a year. She claimed
that she had no idea that she was going to Clovis when she left Albuquerque
with Rodriguez and denied renting the vehicle.
{14} We now consider
whether the evidence reviewed above is sufficient to support Defendant's
conviction for attempt to manufacture methamphetamine. In order to be guilty of
the crime of attempt to manufacture methamphetamine, Defendant must commit an
overt act in furtherance of the crime of manufacturing and that act must be
"more than mere preparation."
State v.
Green,
116 N.M. 273, 280,
861 P.2d 954, 961 (1993);
see NMSA 1978, §
30-28-1 (1963) (defining the
crime of attempt as "an overt act in furtherance of and with intent to
commit [the] felony and tending but failing to effect its commission").
However, even "slight acts in furtherance [of the crime] will constitute
an attempt."
Stettheimer, 94 N.M. at
153-54, 607 P.2d at 1171-72 (internal quotation marks and citation omitted).
{15} Defendant's actions
in possessing over 5000 pseudoephedrine pills, most of which were unpackaged,
together with acetone and iodine, are sufficient to establish the requisite
overt act for attempt. The jury could infer that Defendant was attempting to
manufacture methamphetamine because there is no legal purpose for Defendant to
possess such a large amount of pseudoephedrine and iodine.
See United States
v. Haynes, 372 F.3d 1164, 1169 (10th Cir. 2004) (holding that the
defendant's possession of "P2P," known to be useful in the
manufacture of methamphetamine and also known to have no purpose other than to
aid in manufacture, together with the possession of other items that can be
used for manufacture, "was ample evidence for a reasonable jury to
conclude beyond a reasonable doubt that [the] [d]efendant had taken a
substantial step in the manufacture of methamphetamine");
cf. Model Penal Code § 5.01(2)(f) (1985)
(specifying actions that are not insufficient as a matter of law to establish a
substantial step toward commission of the underlying offense and including
"possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission,
if such possession, collection or fabrication serves no lawful purpose of the
actor under the circumstances").
{16} In light of
Defendant's failure to adequately explain the large amount of unpackaged
pseudoephedrine, the jury could disbelieve Defendant's explanation that the
iodine was purchased for resale.
See United States v. Becker, 230 F.3d 1224, 1234
(10th Cir. 2000) (holding that the defendant's possession of a recipe and some
ingredients for the "hot" method of manufacturing methamphetamine,
some ingredients for the "cold" method of manufacturing, and
materials that were inconsistent with the defendant's explanation was
sufficient to convict the defendant of attempt to manufacture methamphetamine).
It would be reasonable for the jury to doubt Defendant's explanation about the
iodine because her stated intention to resell is not consistent with the
possession of over 5000 pseudoephedrine pills, and her explanation and
statements at trial were inconsistent with her earlier statements to Mendoza.
See United
States v. Smith, 264 F.3d 1012, 1017 (10th Cir. 2001) (holding that it
was reasonable for the district court to reject the defendant's contention that
he was making pure pseudoephedrine to sell to another manufacturer of
methamphetamine and noting that the receipt for fuel, which is used at the end
of the manufacturing process, cast doubt on the defendant's claim).
{17} Defendant also
contends that there was no evidence from which the jury could reasonably infer
that Defendant participated in obtaining the unpackaged pseudoephedrine pills
and the iodine. We disagree. Based upon circumstantial evidence, the jury could
infer that Defendant, despite her claims to the contrary, had knowledge of the
presence of, and possessed control over, the unpackaged drugs and the iodine.
See State v.
Phillips,
2000-NMCA-028, ¶ 8,
128 N.M. 777,
999 P.2d 421 (stating that,
even if the defendant was not in exclusive possession of the premises where
contraband is located, the "accused's own conduct may afford sufficient additional
circumstances" from which the jury can infer knowledge and control over
the materials in the room). Defendant's statement to Mendoza that the officers
"might" find a small amount of methamphetamine and a "few"
pills in the room indicates that she knew of the pills. Furthermore, the
opened, unpackaged pills were in a box on the floor near the bathroom. In light
of the placement of the pills in plain view, the jury was free to disbelieve
Defendant's claim that she never saw the pills because she never used the
bathroom.
Id. ¶ 11 (stating that the jury
was free to discredit the defendant's claim that she "'hardly ever looked
in the [dresser] drawer'" where the contraband was found and that the jury
"could rationally have concluded that [the][d]efendant was well aware of
the dresser's contents and shared it with [another]") (first alteration in
original).
{18} Mendoza also
testified that Defendant told him about the iodine, although at trial Defendant
attempted to downplay her professed knowledge by offering a different
explanation for her statement to Mendoza.
The jury was free to reject
Defendant's explanation that she only became aware of the iodine when she saw
the receipt for its purchase.
See State v. Coffin,
1999-NMSC-038, ¶ 77,
128 N.M.
192,
991 P.2d 477 (observing that the jury was free "to reject [the
defendant's] explanation of his actions and to draw its own inferences based on
the evidence"). The jury could infer from her inconsistent statements
regarding her knowledge of the pseudoephedrine pills and iodine that Defendant
knew more about the materials than she was admitting.
See Phillips,
2000-NMCA-028, ¶ 12 (holding that the jury could have seen the defendant's
denials to be contrived and concluded that she knew more than she acknowledged
about the contraband seized from the room she shared with her boyfriend based
upon her earlier statements admitting that she knew of the contraband, her
concession that she had used drugs in the past, and her statement to police
that she "'thought that in order to be charged with possession [of drugs],
you actually had to have it on you.'") (alteration in original).
{19} Based upon the
foregoing, there was sufficient circumstantial evidence to allow the jury to
find that Defendant knew of, and possessed, the pseudoephedrine pills, acetone,
and iodine.
See State v. Chandler,
119 N.M. 727, 731,
895 P.2d
249, 253 (Ct. App. 1995) (holding that jury members are free to "use their
common sense to look through testimony and draw inferences from all the
surrounding circumstances") (internal quotation marks and citation
omitted). Defendant's claim that the pseudoephedrine, acetone, and iodine
belonged to Rodriguez to divest herself of possession and control over the
materials "may have some force as an abstract proposition; but the jury
[was] free to find to the contrary on the evidence here."
Id. at 731, 895 P.2d at 253 (internal quotation
marks and citation omitted).
{20} Defendant also
claims that, even if the jury could conclude that she unpackaged the pills, this
action does not constitute a substantial part of manufacturing as required for
the crime of attempt.
She references Mendoza's explanation of the steps
necessary to manufacture methamphetamine as support for her argument that
unpackaging is not a substantial step. She also relies on the distinction
between pseudoephedrine and ephedrine and notes that only the latter is an
immediate precursor for methamphetamine.
She argues that, given
Mendoza's testimony as to the steps in manufacturing, even if the jury was
allowed to infer that Defendant had removed the pseudoephedrine pills from the
blister packs, such unpackaging is only a preparatory step which is not the
requisite substantial step necessary for an attempt conviction. We disagree.
{21} Mendoza's testimony
shows that the very first essential step in manufacturing methamphetamine is to
separate the ephedrine from its base in the pseudoephedrine pills. "This
act is more than mere preparation" and stands as the first step "in a
direct movement toward the commission of the offense after the preparation . .
. is made."
Green, 116 N.M. at 283,
861 P.2d at 964 (internal quotation marks and citation omitted). Therefore, the
unpackaging, coupled with Defendant's actions in helping to obtain the iodine
and acetone and renting the motel room and car, is sufficient evidence of a
substantial step toward the manufacturing of methamphetamine.
{22} We are also
unpersuaded by Defendant's contention that her actions cannot constitute a
substantial step because the search did not uncover all of the materials
necessary to initiate manufacturing and because methamphetamine could not be
manufactured with the materials present in the motel room. Defendant is correct
that all of the materials necessary to manufacture methamphetamine were not
present in the motel room; the officers failed to find any heat source,
beakers, or burners. However, we are unpersuaded that this lack of materials
warrants reversal. Instead, we agree with the holding of the Court in
Smith that a defendant need not have "a
full 'working lab'" to be convicted of attempt to manufacture
methamphetamine.
Smith, 264 F.3d at 1016.
{23} We recognize that
the dividing line between attempt and preparation is not always clear and is
heavily dependent upon the surrounding factual circumstances.
Stettheimer, 94 N.M. at 154, 607 P.2d at 1172;
see also Smith,
264 F.3d at 1016. However, the circumstantial evidence in this case is more
than sufficient for the jury to draw reasonable inferences that Defendant
committed an overt act in furtherance of the crime of manufacturing
methamphetamine.
See Becker, 230 F.3d at 1234. In addition to
obtaining and possessing suspiciously large amounts of pseudoephedrine and
iodine, Defendant's overt acts include renting a car to travel to Clovis to
obtain inexpensive iodine, renting a motel room where unpackaged
pseudoephedrine was stored, and admittedly smoking methamphetamine in a room
containing over 5000 pseudoephedrine pills, scales, and acetone --materials
necessary to manufacture methamphetamine. These actions are sufficient to
constitute an overt act in furtherance of the manufacture of methamphetamine.
See United States
v. Jessup, 305 F.3d 300, 303 (5th Cir. 2002) (rejecting the defendant's
challenge to the sufficiency of the evidence and holding that "[t]he
affirmative act of collecting a substantial part of the equipment and
ingredients for manufacturing methamphetamine can constitute action beyond
`mere preparation' sufficient to constitute a substantial step");
State v. Sheikh, 41 P.3d 290, 291-93 (Kan. Ct.
App. 2001) (reversing the dismissal of the attempt to manufacture charge based
on the defendant's overt actions in removing approximately 672 pseudoephedrine
tablets from their blister packs and putting the pills, along with other items
used in manufacturing methamphetamine and a handgun, in the defendant's vehicle
and the defendant's admission that he was intending to drive to another
location to cook methamphetamine).
{24} Furthermore, we
disagree with Defendant's contention that the evidence is insufficient to
establish the requisite intent to manufacture methamphetamine. Intent is
usually established by circumstantial evidence.
See
State v. Gallegos,
109 N.M. 55, 66,
781
P.2d 783, 794 (Ct. App. 1989) (stating that intent is usually inferred from the
facts of the case, not direct evidence);
State v.
Gregg,
83 N.M. 397, 399,
492 P.2d 1260, 1262 (Ct. App. 1972) (holding
that there was substantial evidence of the defendant's fraudulent intent even
though the evidence was circumstantial). Defendant's actions in renting a car
to travel to Clovis to obtain relatively inexpensive iodine, renting a motel
room where unpackaged pseudoephedrine was stored, admittedly smoking
methamphetamine in a room containing over 5000 pseudoephedrine pills, scales,
and acetone, and providing inconsistent statements to the investigating
officers are sufficient circumstantial evidence of her intent to manufacture
methamphetamine.
{25} Finally, even in the
absence of any evidence directly connecting Defendant to the opening of the
pseudoephedrine blister packs, or directly connecting her to the purchase of
the iodine, there is sufficient evidence to convict Defendant under a theory of
accomplice liability.
See State v. Carrasco,
1997-NMSC-047, ¶ 6,
124 N.M.
64,
946 P.2d 1075 (noting that accessory liability is equal to that of the
principal);
see also State v. Bankert,
117 N.M. 614, 619-20,
875 P.2d
370, 375-76 (1994) (affirming the defendant's conviction for trafficking
cocaine by possession with intent to distribute based upon evidence showing
that the defendant's accomplice engaged in the possession with intent to
distribute because, even though the defendant "never touched the cocaine
and was often not in the same room where the drug deal took place,"
because the defendant's actions as "financier of the endeavor" and
transporter by way of his personal vehicle sufficiently demonstrated accomplice
status). The jury could infer from Defendant's behavior in smoking
methamphetamine, furnishing the car and the room, and providing inconsistent
statements about her knowledge of the iodine and the amount of the
pseudoephedrine tablets, that she was helping, encouraging, or causing the
attempt to manufacture.
{26} Moreover, this same
evidence is sufficient to establish that Defendant had the requisite intent to
commit trafficking by manufacturing, which is necessary to convict Defendant as
an accessory.
See Carrasco,
1997-NMSC-047, ¶ 7 (observing that an
accessory's intent may be established by inference from the surrounding facts
and circumstances and stating that "intent can be inferred from behavior
which encourages the act");
cf. Bankert, 117 N.M. at 619, 875 P.2d at 375
(indicating that intent may be proven "by inference from the surrounding
facts and circumstances") (internal quotation marks and citation omitted).
The evidence "is not so thin that we can say as a matter of law that
no rational jury could find the required facts
to support [a] conviction."
Carrasco,
1997-NMSC-047, ¶14.
{27} Having reviewed the
evidence in the light most favorable to the verdict, we conclude there was
sufficient evidence to support Defendant's conviction for attempted trafficking
in methamphetamine by manufacture beyond a reasonable doubt. We affirm
Defendant's convictions.
CELIA FOY CASTILLO, Judge