STATE V. MONTES, 2007-NMCA-083, 142 N.M.
221, 164 P.3d 102
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ROBERT MONTES,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2007-NMCA-083, 142 N.M. 221, 164 P.3d 102
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY, Silvia
Cano-Garcia, District Judge
Released for publication July 10, 2007
Gary K. King, Attorney General, Santa Fe,
NM, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee
John Bigelow, Chief Public Defender,
Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
CYNTHIA A. FRY, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, MICHAEL D. BUSTAMANTE, Judge
{1} Defendant appeals
his convictions for distribution of and conspiracy to distribute
methamphetamine in a school zone. He challenges the admission on
cross-examination of evidence that he had distributed drugs on prior occasions
and also contends that his convictions were not based on sufficient evidence.
We reverse the trial court's admission of the prosecutor's questions of
Defendant on cross-examination, and, because we hold there was sufficient
evidence on both convictions, we remand for a new trial.
{2} On March 31, 2004,
four New Mexico State Police officers were working undercover in Las Cruces,
New Mexico. Two of the officers, Agents Hartranft and Coburn, posing as
construction workers who periodically worked on projects in town, came in
contact with Brenda Bustamante at a gas station. The agents knew Bustamante
from previous occasions when they relied on her as an "unwitting
informant;" that is, she was the "go-between" person who
arranged drug transactions without knowing she was dealing with police. There
were also two agents serving as backup to Agents Hartranft and Coburn who were
conducting mobile surveillance.
{3} On the night in
question, Agents Hartranft and Coburn inquired whether Bustamante could get
them some methamphetamine. Bustamante said that she could not, but she
introduced them to her companion that evening, Apple Davis, as someone from
whom the officers could arrange to purchase methamphetamine. Davis testified
that she eventually met up with Sammy Meraz, who told Davis that he could find
her drugs. Davis testified that she and Meraz left the officers and Bustamante
to go to Defendant's parents' house and arranged to meet the officers at Sierra
Middle School. At Defendant's parents' house, Davis testified that she stayed
in the car while Meraz approached Defendant, who was outside working on his
car. She testified that Defendant and Meraz walked back to the car where Davis
was waiting and, while in her presence, Defendant stated "$100,"
which Davis understood to mean that the price of drugs was $100 per gram. Davis
testified that she and Meraz then left Defendant's house to meet the officers
to confirm that the price was acceptable. Davis testified that after confirming
the price was acceptable, she and Meraz returned to Defendant's mother's house
for a second time. Davis remained in the car while Meraz got out of the car and
knocked on the door and Defendant came out of the house. Davis testified that
she did not hear any of the conversation between Defendant and Meraz, nor did
she watch the two men when they were talking to each other. Davis also
testified that she did not see Defendant give Meraz drugs or Meraz give
Defendant money. But Davis did testify that she and Meraz then went to the
middle school and gave the drugs, 1.78 grams of methamphetamine, to the
officers.
{4} Defendant testified
at trial that on March 31, 2004, he was visiting his mother at her house and
was outside by his car when Meraz and Davis drove up and called him over to
Davis's car. Defendant testified that they asked him where they could purchase
methamphetamine and that he told them he did not know. Defendant testified that
Meraz got out of the car, followed Defendant up to his car, and inquired again
about where Meraz could get drugs. Defendant said that he again told Meraz that
he did not know. Defendant admitted that he used cocaine and methamphetamine,
but he denied manufacturing, selling, or dealing drugs.
{5} Defendant makes two
arguments on appeal. First, he contends that the form of the prosecutor's
questioning of Defendant on cross-examination was improper impeachment and
violated Defendant's right to confrontation. Second, Defendant argues that
there was insufficient evidence to convict him on the charges of distribution
of methamphetamine in a school zone and conspiracy to do the same. We address
each argument in turn and provide more facts as needed.
{6} During the State's
case in chief, Davis testified that she knew Defendant "as a person who
could sell or give away methamphetamine." Defendant objected to this
questioning of Davis because it went beyond the scope of the alleged incident
and because its prejudicial effect outweighed its probative value. The State
responded that Davis's testimony explained how Davis knew Defendant. The trial
court overruled Defendant's objection. Later, during Defendant's case in chief,
Defendant testified that he was a drug user, but he denied manufacturing or
dealing drugs. Then, on cross-examination, the prosecutor asked Defendant the
following question: "[B]ack in July of 2003, [if] Cecilia Mata referred to
you as her source [for buying drugs], she would just be wrong?" At that
point, defense counsel objected and the following conversation occurred at the bench
outside the hearing of the jury:
[Defense Counsel]: I object to this
line of questioning. In particular, since he is citing to people who are not
present in the courtroom who can testify under oath in front of the jury. . . .
None of them are present in the court. So I think, certainly, it violates his
right to confrontation. Obviously, I can't really impeach his statement.
[Prosecutor]: Your Honor, I think
all the statements are to the undercover officers[;] therefore it is in
furtherance of the conspiracy naming this defendant. I think also the defense
kicked the door wide open by saying he is known in the community as a drug
user, not as a drug dealer. I think they opened it to this line of
cross-examination.
The Court: Well, for impeachment
purposes you opened the door, [defense counsel]. I am going to allow the
questions, but no extrinsic evidence. He either denies it or admits them.
The prosecutor proceeded to ask Defendant, using the same or
similar form of question, whether he "would be surprised" that
Claudia Padilla, Brenda Bustamante, Anna Tellez, Hope Tellez, and Albert
"Birdie" Jimenez had all referred to Defendant as their source for
drugs.
{7} On appeal,
Defendant challenges the trial court's decision allowing the State to question
Defendant as it did. Defendant claims that the prosecutor's questions contained
inadmissible hearsay and violated Defendant's confrontation rights, that the
questions were improper for the purposes of impeachment, and that the questions
amounted to impermissible character evidence. The State responds that the
evidentiary rules relied on by Defendant do not apply to questions posed on
cross-examination, and that the questions were appropriate to rebut Defendant's
testimony that he was not a drug dealer.
{8} Generally, this
Court reviews a trial court's decision to admit or exclude evidence for abuse
of discretion.
State v. Elinski,
1997-NMCA-117, ¶ 8,
124 N.M. 261,
948
P.2d 1209. We conduct a de novo review of the application of the law to the
facts.
Id.
A. The Trial Court Erred in
Allowing the Prosecutor
to Cross-Examine Defendant Using Hearsay Testimony
{9} The trial court
permitted the prosecutor's questions "for impeachment purposes." Our
Supreme Court has held that it is improper to impeach a defendant with hearsay
evidence under some circumstances.
State v. McClaugherty,
2003-NMSC-006,
¶¶ 19-20, 30,
133 N.M. 459,
64 P.3d 486. Therefore, we first consider whether
the prosecutor's questions constituted hearsay.
{10} Hearsay is "a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." Rule
11-801(C) NMRA. Rule
11-802 NMRA prohibits the admission
of hearsay evidence with certain exceptions provided for in the rules. We
conclude that the statements made by the five out-of-court declarants, which
were embedded in the prosecutor's questions, were hearsay. They were offered
for the purpose of establishing that Defendant had indeed distributed drugs on
previous occasions. The impeachment value of the prosecutor's questions turned
on the jury's belief of the truth of the out-of-court statements to which the
prosecutor referred. Thus, even assuming the prosecutor asked the questions to
impeach Defendant, the questions also had the substantive purpose of proving
that Defendant had distributed the drugs on prior occasions.
{11} Because the
statements were offered to prove the truth of the matter asserted, they would
be admissible only if the statements fit within an exception to the hearsay
rule or were specifically designated as "non-hearsay" under Rule
11-801(D)(2). The State relied on Rule 11-801(D)(2)(e), which provides that
"[a] statement is
not hearsay if: [t]he statement is offered
against a party and is a statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy." (Emphasis added.) We will
refer to this as the co-conspirator's rule. The co-conspirator's rule requires
the proponent of the evidence to demonstrate: (1) The existence of a conspiracy
of which the declarant and the defendant were members, (2) that the statement
was made in the course of that conspiracy, and (3) that the statement was made
in furtherance of that conspiracy. 5 Jack B. Weinstein & Margaret A.
Berger,
Weinstein's Federal Evidence § 801.34[3], 77 (2d ed. 2007). For
the co-conspirator's rule to apply, our Court requires a "sufficient
foundation" establishing the existence of a conspiracy and that the
co-conspirator's acts and statements were made in furtherance of the
conspiracy.
See State v. Farris,
81 N.M. 589, 589,
470 P.2d 561, 561
(Ct. App. 1970).
{12} The State failed to
lay the required foundation for the applicability of the co-conspirator's rule.
There is nothing in the record from which the trial court could determine
whether there was a conspiracy of which Defendant and the declarants were
members, whether the statements were made in the course of such a conspiracy,
or whether the statements were in furtherance of such a conspiracy. Therefore,
there was no basis for the co-conspirator's rule to apply and it was error to
allow the prosecutor to include the hearsay statements in his
cross-examination.
{13} Interestingly, on
appeal the State does not argue the co-conspirator rule as a basis for the
admission of the statements. Rather, it relies exclusively on the argument that
the statements were used for impeachment and were therefore admissible.
However, as we have discussed, the hearsay problem is evident and cannot be ignored.
{14} We are not persuaded
by the State's argument that the prosecutor's questions were admissible as
impeachment. The State contends the statements did not constitute
"evidence" because they were not "presented to the jury."
The State contends that the "principles enunciated [in Rules
11-404(B)
NMRA, -801] apply only to evidence actually admitted before a jury and not to
questions posed on cross-examination." (Emphasis omitted.) We disagree.
The State's form of questioning Defendant
implied that it had
substantive evidence that Defendant in fact sold or distributed drugs to the
six people that the prosecutor named in the questions.
{15} The circumstances in
the present case are similar to those in
McClaugherty. In that case, the
defendant, who was facing murder charges, testified and denied shooting the
victim.
2003-NMSC-006, ¶ 10. The state, on cross-examination, attempted to
impeach the defendant with statements apparently made by the defendant's sister
and his roommate.
Id. ¶ 11. At first, the state asked the defendant what
he had told his sister and his roommate, and when the defendant responded that
he told his sister and roommate that he had run away, the prosecutor suggested
that he had statements given by the sister and the roommate.
Id. The
prosecutor then asked the defendant the following: "[W]ould it surprise
you to hear that your sister . . . gave a statement to the police . . . that
you admitted to her that you shot[?]"
Id. ¶ 13. Our Supreme Court
held that the questions were impermissible, reasoning that even though the
prosecutor intended to impeach the defendant, the questions also "served
the substantive purpose of proving [the d]efendant had admitted guilt."
Id.
¶ 25.
{16} Similarly, in this
case, the questions the prosecutor asked of Defendant implied that the State
had evidence that Defendant engaged in acts of selling drugs on prior
occasions. That evidence, purportedly used to impeach Defendant's credibility,
also had the purpose of introducing evidence that Defendant had acted, at least
six times, in a manner consistent with the present charges; that is,
that Defendant had distributed drugs to six other people. As the Court noted in
McClaugherty, the prosecutor's questions "appear[ed] to assume a fact
on which the jury could rely. That fact, however, was not properly in
evidence."
Id.
{17} We find futher
support for our holding in
United States v. Hall, 989 F.2d 711, 713 (4th
Cir. 1993).
See State v. Lopez,
1997-NMCA-075, ¶ 10,
123 N.M. 599,
943
P.2d 1052 (noting that because Rule 11-801 is identical to its federal
counterpart, federal case law is instructive in interpreting the state rule).
In
Hall, the Fourth Circuit Court of Appeals reversed the defendant's
convictions for distribution of drugs and conspiracy to do the same based on
improper cross-examination of the defendant at trial.
Id. at 717. In
Hall,
the prosecutor asked the defendant multiple questions based on a statement
given by the defendant's wife, in which the wife recounted instances of the
defendant's drug use and drug dealings.
Id. at 715. The defendant's wife
did not testify because she asserted spousal privilege.
Id. at 716. In
holding that the government's use of the wife's statement was inadmissible
hearsay, the Fourth Circuit emphasized that "[p]rotections against the use
of privileged and inadmissible evidence would be of little benefit if the
prosecutor were allowed, under the guise of `artful cross-examination,' to tell
the jury the substance of inadmissible evidence."
Id. (citation
omitted). Furthermore, the court recognized that while a defendant is obliged
to testify honestly, even if the prosecution believes that the defendant is
lying, its impeachment techniques "are constrained by the requirements of
the Confrontation Clause."
Id. at n.10. Ultimately, the Fourth
Circuit held that the government's cross-examination of the defendant at trial
was an "egregious example" of the prosecution presenting otherwise
inadmissible evidence through the "back door," and presenting highly
prejudicial testimony that the defendant could not cross-examine.
Id. at
716-17.
{18} The facts of this
case are strikingly similar to those of
Hall. Like the defendant in
Hall
whose wife did not testify, Defendant in this case was cross-examined using
the statements of six people who did not testify. Defendant had no chance to
cross-examine their statements. Also like
Hall, the hearsay testimony in
this case presented evidence to the jury that Defendant had engaged in
distributing and using drugs on previous occasions, and such actions were
identical to the charges that Defendant faced. The prosecutor's questions in
this case demonstrate the "artful cross-examination" that the Fourth
Circuit in
Hall denounced because the questioning allowed otherwise
inadmissible evidence to be heard by the jury through the "back
door."
Id. The State in this case had the right to inquire, on
cross-examination, whether Defendant had ever distributed drugs on previous
occasions, but it was constrained by the rules of evidence as to the manner in
which it sought to impeach Defendant.
{19} We hold that the
State's use of the six out-of-court statements by declarants who did not
testify at trial about Defendant's prior acts of distributing drugs was
improper. Because we hold that the trial court misapplied the law regarding
hearsay and impeachment, we do not address Defendant's argument that his
confrontation rights were violated.
See State v. Rendleman,
2003-NMCA-150, ¶ 37,
134 N.M. 744,
82 P.3d 554 ("It is an enduring
principle of constitutional jurisprudence that courts will avoid deciding
constitutional questions unless required to do so." (internal quotation
marks and citation omitted)). We also do not address Defendant's argument that
the prosecutor's questions constituted improper character evidence. However, we
note that the proper inquiry for a trial court to conduct when deciding whether
to admit evidence that a defendant had engaged in the same conduct for which
the defendant is currently being tried is well established under New Mexico
law.
See State v. Jones,
120 N.M. 185, 186,
899 P.2d 1139, 1140 (Ct.
App. 1995) (outlining the trial court's inquiry when considering evidence under
Rule 11-404);
State v. Robinson,
99 N.M. 674, 676,
662 P.2d 1341, 1343
(1983) (discussing Rule
11-608 NMRA and the trial court's role in considering
evidence of prior acts for impeachment purposes).
B. The Prosecutor's Questions
of
Defendant Were Not Harmless Error
{20} Having determined
that the trial court erred in admitting the prosecutor's questions, we consider
whether the admission of the questions constituted harmless error. The
admission of evidence is not harmless when "there is a reasonable
possibility that the evidence complained of might have contributed to the
conviction."
Clark v. State,
112 N.M. 485, 487,
816 P.2d 1107, 1109
(1991). As our Supreme Court noted in
Clark, the erroneous admission of
evidence that is used for impeachment purposes has two impacts. The error
permits the jury to consider the substantive effect of the evidence itself and
it discredits the testimony of the witness being impeached. Both effects must
be considered in determining whether the error was harmless.
Id. at
487-88, 816 P.2d at 1109-10.
{21} We find the facts of
Clark particularly analogous to this case. In
Clark, our Supreme
Court held that it was not harmless error when the trial court allowed the
prosecutor to cross-examine the defendant's brother, who testified in his
brother's defense at trial, about prior offenses.
Id. at 486, 816 P.2d
at 1108. In so holding, the Court noted that the evidence the prosecutor used
to impeach the defendant's brother suggested that the brother had been involved
in activities like the illegal conduct with which the defendant was charged.
Thus, because the brother was with the defendant at the time of the alleged
offenses, the jury might have viewed the defendant in an unfavorable light.
Id.
at 488, 816 P.2d at 1110. In addition, "the improper impeachment
undermined the credibility of [the brother's] testimony, which tended to
exonerate [the] defendant."
Id.
{22} In this case, there
was a reasonable probability that the evidence introduced on cross-examination
by the State contributed to Defendant's convictions. As in
Clark, the
prosecutor's questions were used both as improper impeachment and as independent
substantive evidence, and the jury's verdict could have been affected by both.
The State's questions of Defendant implied that the State had evidence of, and
that Defendant had committed, six prior acts of selling drugs—evidence that
Defendant had engaged in the same illegal conduct with which he was charged at
trial. This evidence reasonably could have planted the idea in the minds of the
jurors that Defendant had committed acts of selling drugs on prior occasions,
and, therefore, that he did the same act of selling drugs on this occasion.
Additionally, the prosecutor's questions were intended to attack Defendant's
credibility by catching him in a lie. Defendant, the only defense witness,
contradicted the facts as testified to by the State's main witness, Davis.
{23} We cannot say that
there is no reasonable possibility that the improper impeachment and hearsay
evidence did not contribute to Defendant's convictions. Rather, in light of the
fact that the State's case in chief presented only circumstantial evidence of
Defendant's guilt, the improper admission of the State's questions is all the
more prejudicial. Because we conclude that the trial court's admission of the
prosecutor's questions was prejudicial error, we reverse his convictions.
II. Sufficiency of the Evidence
{24} We turn now to
Defendant's contention that the State failed to present sufficient evidence to
support his convictions. We address this argument because Defendant would be
entitled to dismissal, instead of retrial, if the evidence at trial were
insufficient to support his convictions.
State v. Jojola,
2005-NMCA-119,
¶ 2,
138 N.M. 459,
122 P.3d 43,
aff'd by 2006-NMSC-048,
140 N.M. 660,
146 P.3d 305.
{25} Defendant was
convicted of distribution of methamphetamine in a drug-free school zone, in
violation of NMSA 1978, §
30-31-20(C) (2006), and conspiracy to do the same, in
violation of NMSA 1978, §
30-28-2 (1979). Conviction of distribution of methamphetamine
under Section 30-31-20(B)(1) for a first offender is normally a second degree
felony. Subsection C of that statute enhances the crime to a first degree
felony for "[a] person who knowingly violates Subsection B of this section
within a drug-free school zone." § 30-31-20(C). Defendant specifically
argues that the State failed to show that he distributed and conspired to
distribute the drugs within a drug-free school zone.
{26} We review a claim of
insufficient evidence in a light most favorable to the State to determine
"whether substantial evidence of either a direct or circumstantial nature
exists to support a verdict of guilt beyond a reasonable doubt with respect to
every element essential to a conviction."
State v. Sutphin,
107
N.M. 126, 131,
753 P.2d 1314, 1319 (1988). We do not substitute our judgment
for that of the jury or reweigh the evidence.
Id. The sufficiency of the
evidence is measured against the instructions given to the jury, which are the
law of the case.
State v. Schackow,
2006-NMCA-123, ¶ 8,
140 N.M. 506,
143 P.3d 745.
{27} With respect to the
charge of distribution, the trial court instructed the jury on two theories
under which the jury could convict Defendant: liability as a principal, and
liability as an accomplice. We address each theory in turn.
A. Liability of a Principal
{28} On the theory of
liability as a principal, the trial court instructed the jury that, in order to
convict Defendant of distribution of methamphetamine in a drug-free school
zone, it had to find beyond a reasonable doubt that: "[D]efendant
transferred or caused the transfer of methamphetamine to another[,] [D]efendant
knew it was methamphetamine[, and] [t]he transfer occurred in a drug[-]free
school zone." UJI
14-3103 NMRA. Defendant contends there was insufficient
evidence presented that he transferred drugs to anyone and that he transferred
drugs in a drug-free school zone.
{29} In order for
liability as a principal to attach, the transfer had to occur in a drug-free
school zone. Because Defendant was not present in the school parking lot where
the actual transfer took place, he could be liable as a principal only if he
caused
the transfer that took place in the school parking lot. Thus, the transfer in
question was the transfer of drugs to the officers, not the transfer of drugs
to Meraz and Davis.
{30} The State introduced
evidence that Defendant quoted a price for methamphetamine to Meraz and Davis,
that Meraz and Davis left Defendant and then returned to Defendant's mother's
house. While Davis did not see Defendant give drugs to Meraz or Meraz give
money to Defendant, when she and Davis then went to the school parking lot
where the officers were waiting, Meraz gave drugs to the officers. It would be
reasonable for the jury to infer that Defendant knew Meraz and Davis were
acting as go-betweens in the drug purchase, and that Defendant therefore caused
the transfer of the methamphetamine to the officers; however, it would also be
reasonable for the jury to conclude that Defendant did not know that Meraz and
Davis were purchasing drugs for anyone other than themselves. Nonetheless, we
resolve all conflicts in the evidence and indulge all reasonable inferences in
favor of the verdict.
State v. Apodaca,
118 N.M. 762, 765-66,
887 P.2d
756, 759-60 (1994). We therefore conclude there was sufficient evidence to
convict Defendant of causing the transfer of methamphetamine in a drug-free
school zone. As we discuss in more detail below, the jury instruction on
principal liability did not require the jury to find that Defendant
knew
the transfer took place in a drug-free school zone.
{31} Even if the evidence
were insufficient to support Defendant's liability as a principal, it was
sufficient to support his conviction as an accomplice.
Cf. State v. Olguin,
120 N.M. 740, 741,
906 P.2d 731, 732 (1995) (explaining that a general verdict
of guilt need not be set aside "if an alternative basis of conviction is
only factually[, as opposed to legally,] inadequate to support a
conviction"). The trial court instructed the jury on accomplice liability
as follows:
[D]efendant may be found guilty of a
crime even though he himself did not do the acts constituting the crime, if the
[S]tate proves to your satisfaction beyond a reasonable doubt that:
1. [D]efendant intended that
the crime be committed;
2. The crime was committed;
[and]
3. [D]efendant helped,
encouraged or caused the crime to be committed.
See UJI 14-2822 NMRA. Defendant argues that the State
did not present evidence regarding his intent that the transfer occur in a
drug-free school zone.
{32} Under a theory of
accomplice liability, "[a] person may be charged with and convicted of the
crime as an accessory if he procures, counsels, aids or abets in its commission
and although he did not directly commit the crime." NMSA 1978, §
30-1-13
(1972). The "accessory must share the criminal intent of the
principal."
State v. Carrasco,
1997-NMSC-047, ¶ 7,
124 N.M. 64,
946
P.2d 1075.
{33} Defendant argues
that he lacked the specific intent that the transfer of drugs occur in a
drug-free school zone under a theory of accomplice liability. However, under
the instruction on principal liability, the principal did not have to have the
specific intent that the transfer of drugs occur in a drug-free school zone.
The instruction required that, in order to be convicted of principal liability,
Defendant had to have knowledge that the substance was methamphetamine, but the
instruction did not attach any particular mental state or intent with respect
to the occurrence of the actual transfer within the school zone. Because an
accomplice must have the same intent as the principal, and because the
applicable jury instruction did not require the principal to have any intent or
knowledge that the transfer take place in a drug-free school zone, the
accomplice did not have to have such knowledge or intent.
{34} If Defendant
intended to argue that knowledge or intent of the location of transfer is an
essential element of principal liability for this enhanced crime and that the
jury should have been instructed accordingly, he has not clearly made that
argument on appeal, and he did not make that argument below. We express no
opinion on this issue.
See Clayton v. Trotter,
110 N.M. 369, 373,
796
P.2d 262, 266 (Ct. App. 1990) (explaining that an appellate court need not
consider unclear arguments). We leave for another day the question whether the
crime of distribution in a drug-free school zone requires a mental state
regarding the location of distribution.
See § 30-31-20(C) (stating that
a person is guilty of the enhanced distribution crime if the person
"knowingly violates Subsection B of this section[, which proscribes
intentional trafficking of controlled substances,] within a drug-free school
zone").
{35} Having determined
that, under the instructions given, the State did not have to present evidence
of Defendant's intent for the transfer to occur in a drug-free school zone, we
turn to the question of whether sufficient evidence was presented to the jury
to support Defendant's conviction for accomplice liability.
{36} The State presented
evidence at trial, by way of Davis's testimony, that the transfer of
methamphetamine occurred and that Defendant transferred the drugs to Davis
and/or Meraz. Davis testified that she asked Defendant "how much it was
going to be and he said $100 a gram." She testified that she then said to
Defendant that she "[had] to run back to Sierra Middle School." This
testimony, along with the evidence that Davis and Meraz ultimately returned to
Defendant to purchase the drugs, is evidence that supports the State's theory
that Defendant knew that Davis and Meraz were acting as the go-betweens for the
ultimate purchaser. Based on this circumstantial evidence, the jury could infer
that Defendant intended the crime to be committed. We hold that the State
presented sufficient evidence to support Defendant's conviction of distribution
under a theory of accomplice liability.
{37} We now turn to
whether the State presented sufficient evidence to support Defendant's
conviction based on conspiracy to commit distribution of methamphetamine in a
drug-free school zone. The trial court instructed the jury that to find
Defendant guilty of the conspiracy charge it had to find that: "[D]efendant
and another person by words or acts agreed together to commit distribution of
methamphetamine[, and] [D]efendant and the other person
intended to
commit distribution of methamphetamine in a drug-free school zone[.]" UJI
14-2810 NMRA (emphasis added).
{38} Because of the way
the conspiracy instruction is worded, the issue on the conspiracy conviction
turns on whether there was any evidence, direct or circumstantial, that
Defendant intended to distribute the drugs in the drug-free school zone.
See
Schackow,
2006-NMCA-123, ¶ 8 ("Jury instructions become the law of the
case against which the sufficiency of the evidence is to be measured."
(internal quotation marks and citation omitted)). This is in contrast to the
instruction on principal liability for distribution in a drug-free school zone,
because the instruction for that crime did not include an element of knowledge
or intent regarding the location of distribution. "Intent is usually
established by circumstantial evidence."
State v. Brenn,
2005-NMCA-121, ¶ 24,
138 N.M. 451,
121 P.3d 1050. In this case, Davis testified
that she told Defendant that she had to go back to the school. She also
testified that she and Meraz inquired about the price for methamphetamine from
Defendant, that he quoted them a price per gram, and that they left Defendant
and returned later to purchase the drugs. We hold that a jury could infer from
the combination of those actions and conversations that Defendant knew that
Davis and Meraz were going to transfer the drugs to the ultimate purchaser, who
was likely waiting at the school. This being the evidence presented at trial,
there was sufficient evidence to support Defendant's conviction for conspiracy.
{39} For the foregoing
reasons, we reverse Defendant's convictions and remand for a new trial.
MICHAEL D. BUSTAMANTE, Judge