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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
THOMAS CARL WEST, JR,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, James
Waylon Counts, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
Kathleen T. Baldridge, Assistant Public Defender, J.K. Theodosia Johnson,
Assistant Public Defender, Santa Fe, NM, for Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR: LINDA
M. VANZI, Chief Judge, JENNIFER L. ATTREP, Judge
{1} Defendant Thomas
Carl West, Jr., appeals his convictions for trafficking methamphetamine and
conspiracy to traffic methamphetamine. We issued a notice of proposed summary
disposition proposing to affirm, and Defendant has responded with a timely
memorandum in opposition. We have considered Defendant’s arguments, but remain
unpersuaded that our initial proposed disposition was incorrect. We therefore
affirm.
{2} In his memorandum
in opposition, Defendant continues to argue that the evidence was insufficient
to convict him of trafficking methamphetamine. [MIO 2-3] “The test for
sufficiency of the evidence is 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. Duran,
2006-NMSC-035, ¶ 5,
140 N.M. 94,
140 P.3d 515 (internal quotation
marks and citation omitted). We view the evidence “in the light most favorable
to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.”
State v. Cunningham,
2000-NMSC-009, ¶ 26,
128 N.M. 711,
998 P.2d 176. “We will not substitute our
judgment for that of the factfinder, nor will we reweigh the evidence.”
State
v. Trujillo,
2012-NMCA-092, ¶ 5,
287 P.3d 344.
{3} In order to convict
Defendant of trafficking methamphetamine, the State was required to prove
beyond a reasonable doubt that on or about September 15, 2015, (1) “[D]efendant
transferred or caused the transfer of methamphetamine to another[,]” and (2)
“[D]efendant knew it was methamphetamine . . . or believed
it to be some drug or other substance the possession of which is regulated or
prohibited by law[.]” [RP 42]
See State v. Smith,
1986-NMCA-089, ¶ 7,
104 N.M. 729,
726 P.2d 883 (“Jury instructions become the law of the case
against which the sufficiency of the evidence is to be measured.”);
see also
UJI
14-3103 NMRA.
{4} Defendant argues
that the evidence was insufficient to show that he “transferred or caused the
transfer of [the] methamphetamine to another.” [MIO 2] Defendant points to his
testimony that he was at the apartment to buy methamphetamine and argues that
the trafficking statute only punishes the seller of the controlled substance
and not the purchaser. [MIO 2-3]
See NMSA 1978, §
30-31-20 (2006)
(defining trafficking controlled substances). We disagree. At trial, Deputy
Calib Bruce testified that police were conducting a controlled buy on a target
named Michael Marquez. Deputy Bruce testified that he arranged with Mr. Marquez
to come to an apartment located in Otero County in order to buy methaphetamine,
and when he got there, Defendant came into the room and introduced himself.
Deputy Bruce testified that Defendant pulled a baggie of methamphetamine from
his pocket and laid it on the table, and Deputy Bruce put $50 on the table.
Deputy Bruce then took the methamphetamine and left the apartment. [DS 4-5; RP
148-149]
{5} This evidence is
sufficient to establish that Defendant was guilty of trafficking, despite the
fact that he did not directly hand the methamphetamine to the officer.
See
State v. Montes,
2007-NMCA-083, ¶¶ 28-30,
142 N.M. 221,
164 P.3d 102
(determining that a jury could conclude that the defendant caused the transfer
of methamphetamine to another despite the fact that the defendant was not
present for the actual transfer, where the defendant knew that a drug
transaction was taking place and quoted the price for the methamphetamine to
the go-betweens who gave the drugs to police). Additionally, the jury was
entitled to disregard Defendant’s version of events.
See State v. Hughey,
2007-NMSC-036, ¶ 16,
142 N.M. 83,
163 P.3d 470 (“It is the role of the
fact[-]finder to judge the credibility of witnesses and determine the weight of
evidence.”);
see also State v. Sutphin,
1988-NMSC-031, ¶ 21,
107 N.M.
126,
753 P.2d 1314 (recognizing that the fact-finder may reject the defendant’s
version of the incident).
{6} Defendant also
challenges the sufficiency of the evidence to convict him of conspiracy to
traffic. [MIO 3-4] In order to convict Defendant of conspiracy, the State was
required to prove that “[D]efendant and another person by words or acts agreed
together to commit trafficking a controlled substance-methamphetamine[,]” and
that “[D]efendant and the other person intended to commit trafficking a
controlled substance-methamphetamine[.]” [RP 46] The evidence at trial,
described above, was sufficient to allow the jury to infer the existence of an
agreement between Mr. Marquez and Defendant to traffic methamphetamine.
See
State v. Gallegos,
2011-NMSC-027, ¶ 45,
149 N.M. 704,
254 P.3d 655 (stating
that the jury may infer a conspiracy from the defendant’s conduct and the
surrounding circumstances);
see also State v. Roper,
2001-NMCA-093, ¶ 8,
131 N.M. 189,
34 P.3d 133 (recognizing that the agreement comprising a
conspiracy can be nothing more than a mutually implied understanding that can
be proved by the cooperative actions of the participants involved).
{7} In his memorandum
in opposition, Defendant argues that he could not conspire as a matter of law
with the undercover officer, and that he also could not conspire with Mr.
Marquez, because Defendant was a merely a customer. [MIO 4] While we agree that
Defendant could not be convicted of conspiring with Deputy Bruce, the evidence
was sufficient to show an agreement with Mr. Marquez, notwithstanding
Defendant’s testimony that he was only there to buy methamphetamine.
See
State v. Saiz,
2017-NMCA-072, ¶ 26,
404 P.3d 422 (recognizing that “neither
a law enforcement officer nor a government agent can be a co-conspirator”);
Sutphin,
1988-NMSC-031, ¶ 21 (recognizing that the fact-finder “may reject [the] defendant’s
version of the incident”).
{8} As a final matter,
we note that Defendant has not responded to our proposed summary disposition of
his arguments that his trial counsel was ineffective or that his prior plea to
trafficking was involuntary. Accordingly, for the reasons set out above and
those stated in our notice of proposed summary disposition, we affirm the
district court.
LINDA M. VANZI, Chief Judge
JENNIFER L. ATTREP, Judge