30-31-20.  Trafficking controlled substances; violation.

Amendment Notes. 

The 2006 amendment, effective July 1, 2006, divided former Paragraph A(2) into Paragraphs A(2)(a) and (b) and added Paragraph A(2)(c) and divided former Paragraph A(3) into Paragraphs A(3)(a) and (b) and added Paragraph A(3)(c).

Notes to Decisions

      Constitutionality.

      Generally.

Enhancement that occurs under the trafficking statute is fundamentally different than an enhancement under the habitual offender statute in that the trafficking conviction itself is raised from a second-degree felony to a first-degree felony if the defendant has one or more prior trafficking convictions, and the basic sentence is therefore increased from nine to 18 years under Subsection B(2) of this section; as with other basic sentences imposed under the provisions of 31-18-15 NMSA 1978, the basic sentence for a second-degree trafficking conviction can be suspended or deferred in whole or in part but not for a first-degree trafficking conviction, under 31-20-3 NMSA 1978. By contrast, regardless of the level of noncapital felony, a habitual offender enhancement simply adds a varying number of years to the underlying basic sentence, depending on the number of prior convictions, and those additional years cannot be suspended or deferred, under 31-18-17 NMSA 1978. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110, 2009 N.M. LEXIS 412 (N.M. 2009).

Defendant was a potential purchaser of controlled substances, which was necessarily incidental to the crime of trafficking through the sale of a controlled substance. Therefore, he could not be guilty of solicitation to traffic. State v. Pinson, 1995-NMCA-045, 119 N.M. 752, 895 P.2d 274, 1995 N.M. App. LEXIS 38 (N.M. Ct. App. 1995).

           —Sentence.

Where a district court did not use any conviction twice to enhance defendant’s sentence, it was not required to enhance defendant’s sentence under the more specific enhancement provision contained in this section. State v. Hubbard, 1992-NMCA-014, 113 N.M. 538, 828 P.2d 971, 1992 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 113 N.M. 352, 826 P.2d 573, 1992 N.M. LEXIS 73 (N.M. 1992).

      Appeal.

Defendant’s conviction of illegal possession of heroin with intent to distribute under 30-31-20A(3) NMSA 1978 was affirmed and the officers unannounced entry into defendant’s residence was justified because they had good reason to believe that defendant would destroy evidence. State v. Ortega, 1994-NMSC-013, 117 N.M. 160, 870 P.2d 122, 1994 N.M. LEXIS 39 (N.M. 1994).

      Applicability.

      Conspiracy.

Defendant, single seller, engaged in single drug transaction with single buyer; that simple agreement to buy drugs was insufficient to also establish separate conspiracy between defendant and buyer, and Wharton’s Rule precluded defendant’s charge of conspiracy. State v. Silvas, 2013-NMCA-093, 310 P.3d 621, 2013 N.M. App. LEXIS 61 (N.M. Ct. App. 2013), cert. denied, 309 P.3d 100, 2013 N.M. LEXIS 364 (N.M. 2013), aff'd, 2015-NMSC-006, 343 P.3d 616, 2015 N.M. LEXIS 42 (N.M. 2015).

Evidence was sufficient to convict defendant of conspiracy to manufacture methamphetamine because (1) a witness testified that he and defendant, along with another witness, had gone out-of-town to purchase pseudoephedrine, which they needed for the methamphetamine; (2) the other witness confirmed that in her testimony and stated that they each went into the store separately in order to buy a larger quantity of the pills; (3) a law enforcement methamphetamine lab expert testified that the first step in the manufacture of methamphetamine was the extraction of ephedrine from pseudoephedrine; and (4) the evidence supported an inference that defendant actually manufactured the methamphetamine the day after the trip to purchase pseudoephedrine. State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, 2010 N.M. App. LEXIS 115 (N.M. Ct. App.), cert. denied, 148 N.M. 611, 241 P.3d 612, 2010 N.M. LEXIS 466 (N.M. 2010).

Evidence was sufficient to support defendant’s conviction conspiracy to distribute methamphetamine in a drug-free school zone because a jury could infer from the combinations of actions and conversations that defendant knew that the informant and another man were going to transfer the drugs to the ultimate purchaser, who was likely waiting at the school. The informant testified that she told defendant that she had to go back to the middle school and that she and the other man 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. State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102, 2007 N.M. App. LEXIS 58 (N.M. Ct. App. 2007).

Evidence was sufficient to convict defendant of conspiracy to traffic crack cocaine, a controlled substance, contrary to 30-21-20A(1)-(3) NMSA 1978 because wiretapped conversations revealed that defendant attempted to procure the cocaine through the agency of his wife and another individual and that he intended to use the crack himself or deliver it to a third party. State v. Knight, 2000-NMCA-016, 128 N.M. 591, 995 P.2d 1033, 2000 N.M. App. LEXIS 6 (Ct. App. 2000), cert. denied, 128 N.M. 689, 997 P.2d 821 (2000); overruled on other grounds, State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376, 2009 N.M. LEXIS 410 (N.M. 2009).

      Construction.

Term “knowingly,” as used in Subsection C of this section, requires the state to prove knowledge of the drug-free school zone as an essential element of distributing drugs in a drug-free school zone. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009), cert. denied, 147 N.M. 600, 227 P.3d 90, 2009 N.M. LEXIS 1028 (N.M. 2009), cert. denied, 147 N.M. 673, 227 P.3d 1055, 2010 N.M. LEXIS 231 (N.M. 2010).

      Construction with other law.

      Defenses.

Because the legislature has not included a personal use exception in New Mexico’s definition of manufacture, unlike North Carolina, there is no such exception. A trial court did not err by refusing to grant defendant’s request for a jury instruction on the personal use exception in a case involving trafficking methamphetamine by manufacturing. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, 2004 N.M. App. LEXIS 84 (N.M. Ct. App. 2004).

Defendant was not entitled to a directed verdict on a charge of trafficking in cocaine because he had not established entrapment as a matter of law. Because there was conflicting testimony going to the entrapment issue, there were questions of fact which required that the case go to the jury. State v. Sellers, 1994-NMCA-053, 117 N.M. 644, 875 P.2d 400, 1994 N.M. App. LEXIS 50 (N.M. Ct. App.), cert. denied, 118 N.M. 90, 879 P.2d 91, 1994 N.M. LEXIS 211 (N.M. 1994).

Jury was instructed properly on the entrapment defense because the instruction provided guidance for the jury by articulating an appropriate “reasonable person” standard. Furthermore, the instruction’s language “who was not otherwise ready and willing to commit the crime,” did not shift the focus to the defendant, but rather provided the jury the remainder of the necessary framework within which to assess the police action. State v. Sellers, 1994-NMCA-053, 117 N.M. 644, 875 P.2d 400, 1994 N.M. App. LEXIS 50 (N.M. Ct. App.), cert. denied, 118 N.M. 90, 879 P.2d 91, 1994 N.M. LEXIS 211 (N.M. 1994).

      Deposition.

      Double jeopardy.

Where defendant was convicted of trafficking cocaine, conspiracy to commit cocaine trafficking, and possession of cocaine, defendant’s double jeopardy claim failed because defendant’s actions in possessing and trafficking cocaine bore sufficient indicia of distinctness to support a finding that they were not unitary; there was evidence that defendant possessed the cocaine both before and after defendant sold some of it to an officer. State v. Contreras, 2007-NMCA-045, 141 N.M. 434, 156 P.3d 725, 2007 N.M. App. LEXIS 19 (N.M. Ct. App.), cert. quashed, 143 N.M. 157, 173 P.3d 764, 2007 N.M. LEXIS 585 (N.M. 2007).

      Drug precursor.

Defendant convicted of attempt to commit trafficking by manufacturing after she was arrested for shoplifting eight boxes of nonprescription medications containing ephedrine, and admitted that she was aware that the medications were to be used to manufacture methamphetamine, was incorrect in her argument on appeal that she should have been convicted of possession of drug paraphernalia instead, because drug precursors such as ephedrine are not considered to be drug paraphernalia. State v. McWhorter, 2005-NMCA-133, 138 N.M. 580, 124 P.3d 215, 2005 N.M. App. LEXIS 166 (N.M. Ct. App.), cert. denied, 138 N.M. 586, 124 P.3d 564, 2005 N.M. LEXIS 544 (N.M. 2005).

      Drug trafficking.

In a prosecution for trafficking in cocaine, albeit defendant testified that he did not sell any cocaine to a particular witness that identified him in court as the person that had sold him crack cocaine on the subject date, the jury could reject permissibly defendant’s version of facts especially given the overpowering evidence that was contrary to his version. State v. Cooper, 1998-NMCA-180, 126 N.M. 500, 972 P.2d 1, 1998 N.M. App. LEXIS 163 (N.M. Ct. App.), cert. denied, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 455 (N.M. 1998).

      Due process.

      Elements.

Under 30-31-20B(2) NMSA 1978, in order to prove that a trafficking charge was a first degree felony, the court was required to find that defendant had a prior trafficking conviction. The prior trafficking offense was used to prove the offense of conspiracy to commit a first degree felony. State v. Lacey, 2002-NMCA-032, 131 N.M. 684, 41 P.3d 952, 2002 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 113 (N.M. 2002).

Defendant’s conviction for trafficking-by-manufacture under 30-31-20A(1) NMSA 1978 was overturned for insufficient evidence because the only evidence against defendant was that he was growing marijuana, which did not constitute manufacturing as defined in 30-31-2M NMSA 1978; without more, growing marijuana does not constitute manufacture. State v. Shaulis-Powell, 1999-NMCA-090, 127 N.M. 667, 986 P.2d 463, 1999 N.M. App. LEXIS 60 (N.M. Ct. App.), cert. denied, 127 N.M. 391, 981 P.2d 1209, 1999 N.M. LEXIS 182 (N.M. 1999), cert. denied, 127 N.M. 391, 981 P.2d 1209, 1999 N.M. LEXIS 201 (N.M. 1999).

Defendant charged with trafficking in heroin who denied that he thought the substance he procured for an undercover agent was heroin, denied an element of the offense charged because the statute specifically required proof that he knew he was trafficking in heroin. Martinez v. State, 1978-NMSC-051, 91 N.M. 747, 580 P.2d 968, 1978 N.M. LEXIS 937 (N.M. 1978).

Defendant’s conviction for attempted drug trafficking was a violation of due process where he was charged only with trafficking because attempt was not a lesser included offense of trafficking but the evidence showed that he was guilty of possession, which was a lesser included offense of trafficking. State v. Alderete, 1977-NMCA-130, 91 N.M. 373, 574 P.2d 592, 1977 N.M. App. LEXIS 704 (N.M. Ct. App. 1977), cert. denied, 91 N.M. 491, 576 P.2d 297, 1978 N.M. LEXIS 1038 (N.M. 1978).

      Error.

Trial court erred in dismissing any enhancement proceedings with prejudice when it sentenced defendant on three counts of trafficking in cocaine because enhancement under 30-31-20B NMSA 1978 had not been sought by the state, there was no constitutional or statutory bar to a post-sentence enhancement procedure. State v. Santillanes, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354, 1981 N.M. LEXIS 2356 (N.M. 1981).

      Evidence.

Evidence was sufficient to support defendant’s conviction for manufacture of methamphetamine because two witnesses testified that they were with defendant when he purchased pseudoephedrine the day before the search; defendant and one of the witnesses used the pseudoephedrine to make the methamphetamine; the same witness testified that he burned acetone cans that he and defendant had used to make the methamphetamine, that he obtained his methamphetamine from defendant, and that he got a half gram of methamphetamine from defendant on the day of the search; the two witnesses testified that defendant lived in the house; and one of the witnesses stated that she had seen defendant at the house on the morning of the search, which was the day the methamphetamine lab was discovered. State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, 2010 N.M. App. LEXIS 115 (N.M. Ct. App.), cert. denied, 148 N.M. 611, 241 P.3d 612, 2010 N.M. LEXIS 466 (N.M. 2010).

Evidence was sufficient to support defendant’s conviction of accessory to attempt to manufacture methamphetamine as it showed or gave rise to reasonable inferences that defendant took steps and overtly acted in furtherance of manufacturing methamphetamine. The evidence was that: (1) defendant purchased 35 boxes of matches from several different stores, one right after the other; (2) the matchboxes contained red phosphorous, a key ingredient in manufacturing methamphetamine; (3) defendant bought the boxes for her sister and turned them all over to her sister; (4) defendant knew that the matchboxes were scraped for red phosphorous and she knew the substance was used in manufacturing methamphetamine; (5) defendant knew that the matchboxes were going to be used to manufacture methamphetamine; and (6) together with her sister she purchased or financed the purchase of other products that were ingredients commonly used to manufacture methamphetamine, including fuel and distilled water. State v. Kent, 2006-NMCA-134, 140 N.M. 606, 145 P.3d 86, 2006 N.M. App. LEXIS 129 (N.M. Ct. App.), cert. denied, 140 N.M. 674, 146 P.3d 809, 2006 N.M. LEXIS 521 (N.M. 2006).

           —Admissible.

Defendant was properly charged with trafficking by possession with intent to distribute cocaine, after police discovered cocaine and $19,510 in his home. Defendant was not entitled to suppress the evidence of cocaine that was seized from his home during the execution of a search that was supported by probable cause. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509, 2004 N.M. App. LEXIS 23 (N.M. Ct. App. 2004).

Defendant’s conviction for two counts of violating former 54-7-14, 1953 Comp., unlawful sale of a narcotic drug, was upheld because the chain of custody of the heroin was unbroken and testified to, and the heroin was properly identified through the process of visual identification; therefore, admission of the evidence of heroin was proper. State v. Chavez, 1973-NMCA-036, 84 N.M. 760, 508 P.2d 30, 1973 N.M. App. LEXIS 685 (N.M. Ct. App. 1973).

           —Inadmissible.

At defendant’s trial for possession of a controlled substance with intent to distribute, contrary to Subsection A(3) of this section, and tampering with evidence, contrary to 30-22-5 NMSA 1978, his Sixth Amendment right to confrontation was violated because a chemical forensic report was admitted into evidence based upon testimony from an analyst who had not prepared the report; defendant had no opportunity to cross-examine the creator of the report. The error was not harmless; without the admission of the report and the testimony based on it, there was no evidence that the substance found on defendant was cocaine. State v. Moncayo, 2012-NMCA-066, 284 P.3d 423, 2012 N.M. App. LEXIS 57 (N.M. Ct. App. 2012).

           —Insufficient.

Evidence was insufficient to support defendant’s conviction of conspiracy to traffic cocaine within a drug-free school zone under 30-28-2A NMSA 1978 and Subsection C of this section because the evidence was insufficient to support a conclusion that defendant knew that he was distributing drugs in a drug-free school zone. The evidence established that defendant made an agreement with another, that he shared the purpose of trafficking drugs, and that he intended that the drugs be sold, but the evidence failed to establish that defendant knew that the drugs would be sold in a drug-free school zone; there existed no evidence that defendant knew that the transaction would occur within a drug-free school zone, and the lone fact that a school may have been visible at a distance of almost 900 feet did not suffice to prove conspiracy to traffic cocaine within a drug-free school zone beyond a reasonable doubt. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009), cert. denied, 147 N.M. 600, 227 P.3d 90, 2009 N.M. LEXIS 1028 (N.M. 2009), cert. denied, 147 N.M. 673, 227 P.3d 1055, 2010 N.M. LEXIS 231 (N.M. 2010).

Defendant who was driving in his car when he was approached by a drug dealer, who paid $20 to the dealer to examine the drug, and who gave the drug back to the dealer was not guilty of trafficking in a controlled substance under 30-31-20A NMSA 1978 because the trafficking statute penalizes only the seller, not the buyer, of drugs. State v. Pinson, 1995-NMCA-045, 119 N.M. 752, 895 P.2d 274, 1995 N.M. App. LEXIS 38 (N.M. Ct. App. 1995).

           —Sufficient.

Evidence supported convictions for possession of methamphetamine with intent to distribute and for conspiracy where the evidence showed that defendant was a passenger in a vehicle carrying a large quantity of methamphetamine and that a masking agent emitting an odor had been applied inside the vehicle; a powdery substance appearing to be the masking agent was found on both the passenger’s and driver’s sides of the car, and residue was visible on defendant’s shirt. State v. Pacheco, 2008-NMCA-131, 145 N.M. 40, 193 P.3d 587, 2008 N.M. App. LEXIS 106 (N.M. Ct. App. 2008).

Evidence was sufficient to support a conviction for trafficking a controlled substance where a large plastic bag of drugs was found underneath a refrigerator; defendant had been hiding behind the refrigerator during a police chase, and his discarded clothing was also found there. As such, constructive possession was shown. State v. Templeton, 2007-NMCA-108, 142 N.M. 369, 165 P.3d 1145, 2007 N.M. App. LEXIS 84 (N.M. Ct. App. 2007).

Evidence was sufficient to support defendant’s conviction of distributing methamphetamine in a drug-free school zone as an accomplice because the informant testified that she asked defendant “how much it was going to be and he said $100 a gram” and that she then said to defendant that she had to run back to the middle school. This evidence supported the inference that the informant and another man were acting as go-betweens for the ultimate purchaser. State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102, 2007 N.M. App. LEXIS 58 (N.M. Ct. App. 2007).

Evidence was sufficient to support defendant’s conviction of distributing methamphetamine in a drug-free school zone as a principal because it would be reasonable to infer from the evidence that defendant knew that an informant and another man were acting as go-betweens in the drug purchase and that defendant therefore caused the transfer of the methamphetamine from the go-betweens to the officers in the middle school parking lot. State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102, 2007 N.M. App. LEXIS 58 (N.M. Ct. App. 2007).

Evidence was more than sufficient to support defendant’s conviction for manufacturing methamphetamine, where, in addition to obtaining and possessing over 5,000 mostly unpackaged pseudoephedrine pills, together with iodine, defendant’s overt acts included renting a car to travel to obtain inexpensive iodine, renting a motel room where unpackaged pseudoephedrine was stored, and admittedly smoking methamphetamine in a room containing scales and acetone, materials necessary to manufacture methamphetamine. State v. Brenn, 2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050, 2005 N.M. App. LEXIS 118 (N.M. Ct. App.), cert. denied, 138 N.M. 494, 122 P.3d 1263, 2005 N.M. LEXIS 468 (N.M. 2005).

Evidence was sufficient to support defendant’s convictions for trafficking cocaine by possession with intent to distribute and tampering with evidence, where defendant walked out of his house to a truck, observed officers converging to arrest him, and dropped packets of drugs behind the seat of the truck and where the women in the truck testified that they had bought drugs from defendant as recently as that day. State v. Graham, 2003-NMCA-127, 134 N.M. 613, 81 P.3d 556, 2003 N.M. App. LEXIS 86 (N.M. Ct. App. 2003), rev'd, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285, 2005 N.M. LEXIS 116 (N.M. 2005).

Evidence of defendant and the co-defendant’s attempt to talk the agents into an additional drug deal constituted a sufficient basis from which the jury could have reasonably concluded that defendant entered into an agreement with another within New Mexico to traffic in drugs. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, 1996 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 121 N.M. 375, 911 P.2d 883, 1996 N.M. LEXIS 67 (N.M. 1996).

Convictions of defendant for trafficking a controlled substance by possession with intent to distribute and possession with intent to distribute marijuana, contrary to 30-31-20A(3) and 30-31-22A(1) NMSA 1978 were affirmed on appeal as supported by substantial evidence because the evidence presented supported constructive possession where the police found drugs and drug paraphernalia in a house rented to defendant, defendant was at the house at the time of the police raid of the house when the illicit drug enterprise was being carried out in defendant’s presence, and some of defendant’s possessions were found in close association with the drugs; thus, there could be no argument that defendant believed the sale of illegal drugs to be innocent. State v. Chandler, 1995-NMCA-033, 119 N.M. 727, 895 P.2d 249, 1995 N.M. App. LEXIS 43 (N.M. Ct. App. 1995).

Defendant could be convicted of trafficking cocaine by possession with intent to distribute, pursuant to 30-31-20A(3) NMSA 1978, even though he never touched the cocaine where his wife, as his accomplice, engaged in trafficking by possession with intent to distribute the drug. State v. Bankert, 1994-NMSC-052, 117 N.M. 614, 875 P.2d 370, 1994 N.M. LEXIS 195 (N.M. 1994).

Sufficient evidence supported defendant’s conviction for conspiracy to traffic cocaine in violation of this section because the evidence supported an inference that defendant had agreed to deliver the cocaine. State v. Sellers, 1994-NMCA-053, 117 N.M. 644, 875 P.2d 400, 1994 N.M. App. LEXIS 50 (N.M. Ct. App.), cert. denied, 118 N.M. 90, 879 P.2d 91, 1994 N.M. LEXIS 211 (N.M. 1994).

      Guilty plea.

Prior to the acceptance of his plea, an inmate was not given an assessment of the length of the enhancement, as the trial court focused on the possibility of enhancements under the habitual offender statute, 31-18-17 NMSA 1978, but never specifically mentioned the additional enhancement that was likely to result under the trafficking statute, Subsection B(2) of this section; the court agreed with the inmate that the trial court erred in summarily denying his petition without holding an evidentiary hearing under Rule 5-802 NMRA, for which the court remanded. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110, 2009 N.M. LEXIS 412 (N.M. 2009).

      Habeas corpus.

Petitioner was not entitled to habeas relief on his claim that the trial court misunderstood the New Mexico sentencing statute in sentencing him to nine years’ imprisonment for a violation of Subsection A(3) of this section because Subsection B(1) provides that a person who violates it is, for the first offense, guilty of a second degree felony and will be sentenced pursuant to the provisions of 31-18-15 NMSA 1978, and § 31-18-15(A)(6) states that the basic sentence is, for a second degree felony, nine years imprisonment. Richwine v. Romero, No. CIV 09-0870 JB/GBW, 2012 U.S. Dist. LEXIS 85057 (D.N.M. Mar. 30, 2012).

Where defendant claimed in habeas corpus proceedings that he was induced by a police informant to participate in a heroin transaction, defendant was entitled to relief because his counsel was constitutionally inadequate in his representation when he allowed defendant to take the stand and admit all of the elements of the crime without raising the entrapment defense. Capps v. Sullivan, 921 F.2d 260, 1990 U.S. App. LEXIS 21234 (10th Cir. N.M. 1990), superseded by statute as stated in Thornton v. Reynolds, No. 99 Civ 10605 (GEL), 2001 U.S. Dist. LEXIS 10435 (S.D.N.Y. July 26, 2001).

      Illegal search and seizure.

Where defendant was charged with trafficking in a controlled substance under this section and he moved to suppress the evidence on the ground that the police violated his constitutional rights in conducting a warrantless search, the trial court did not err in denying defendant’s suppression motion because a statement to a police officer that an active methamphetamine lab was present in a home, when made by a person who just exited the home, provided the particularized information necessary to conclude that there were exigent circumstances justifying a warrantless entry into the home. State v. Allen, 2011-NMCA-019, 149 N.M. 267, 247 P.3d 1152, 2010 N.M. App. LEXIS 160 (N.M. Ct. App. 2010), cert. denied, 150 N.M. 559, 263 P.3d 901, 2011 N.M. LEXIS 86 (N.M. 2011).

Because directing defendant to empty his pockets exceeded the pat down that was authorized as to a Terry search, the Fourth Amendment, the Fourteenth Amendment, and N.M. Const. art II  § 10 provided a valid basis for granting the motion to suppress the marijuana and the cocaine that defendant involuntarily abandoned after fleeing from the police officers in response to the order to empty his pockets; the seizure of that evidence was inadmissible because it was the fruit of the illegal search regarding the order to empty the pockets. State v. Ingram, 1998-NMCA-177, 126 N.M. 426, 970 P.2d 1151, 1998 N.M. App. LEXIS 160 (N.M. Ct. App.), cert. denied, 126 N.M. 533, 972 P.2d 352, 1998 N.M. LEXIS 421 (N.M. 1998).

      Indictment.

      Instructions.

Under 30-31-20A NMSA 1978, the transfer of drug samples and the subsequent exchange of the larger quantities of drugs cannot be said to be essentially contemporaneous; therefore, the trial court was not required to instruct the jury on the single-intent doctrine. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, 1996 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 121 N.M. 375, 911 P.2d 883, 1996 N.M. LEXIS 67 (N.M. 1996).

      Intent, knowledge.

      Jurisdiction.

      Jury instructions.

      Legislative intent.

      Manufacture.

Conviction for manufacturing psilocybin mushrooms was reversed because there was no evidence that defendant engaged in extraction from substances of natural origin or chemical synthesis as defined by 30-31-2M NMSA 1978; the state’s own expert testified that the drug was naturally produced in the mushrooms at the mycelium knot stage. State v. Pratt, 2005-NMCA-099, 138 N.M. 161, 117 P.3d 967, 2005 N.M. App. LEXIS 92 (N.M. Ct. App.), cert. denied, 138 N.M. 328, 119 P.3d 1265, 2005 N.M. LEXIS 363 (N.M. 2005).

      Notice.

Trial court did not err in striking an enhancement clause from an indictment, as the notice required by 30-31-20B NMSA 1978 of the Controlled Substances Act for enhancement was not provided to defendant. However, the State could file a supplemental information charging a second violation of the Controlled Substances Act against defendant subsequent to his conviction on the second. State v. Santillanes, 1980-NMCA-183, 96 N.M. 482, 632 P.2d 359, 1980 N.M. App. LEXIS 996 (N.M. Ct. App. 1980), rev'd, in part, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354, 1981 N.M. LEXIS 2356 (N.M. 1981).

      Prejudice.

      Probation.

      Proof.

To convict defendant by a jury trial of trafficking in cocaine, the State was required to prove beyond a reasonable doubt that defendant transferred cocaine to another and that he knew that it was cocaine or believed it to be cocaine or believed it to be some drug or other substance the possession of which was regulated or prohibited by law and that it happened in New Mexico on or about a particular day. State v. Cooper, 1998-NMCA-180, 126 N.M. 500, 972 P.2d 1, 1998 N.M. App. LEXIS 163 (N.M. Ct. App.), cert. denied, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 455 (N.M. 1998).

      Relationship with other law.

Defendant was not entitled to dismissal of charges of distributing methamphetamine in violation of Subsection A(2) of this section because even if a United States Air Force Office of Special Investigations investigation violated the federal Posse Comitatus Act, 18 U.S.C.S. § 1385, defendant failed to present any evidence of widespread and repeated violations. State v. Gonzales, 2011-NMCA-007, 149 N.M. 226, 247 P.3d 1111, 2010 N.M. App. LEXIS 157 (N.M. Ct. App. 2010).

      Requirements.

30-31-20B NMSA 1978 does not require a jury determination of a defendant’s identity as a prior offender. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, 1985 N.M. App. LEXIS 631 (N.M. Ct. App. 1985).

      Search and seizure.

Based on the odor of marijuana detected by officers during a traffic stop and defendant’s admission of having smoked it, the officers were justified in requesting defendant’s consent to search the vehicle. The evidence acquired from the search satisfied the standards of the Fourth Amendment and N.M. Const. art II  § 10; therefore, the district court properly denied defendant’s motion to suppress the evidence during his criminal prosecution for trafficking a controlled substance in violation of this section. State v. Candelaria, 2011-NMCA-001, 149 N.M. 125, 245 P.3d 69, 2010 N.M. App. LEXIS 154 (N.M. Ct. App.), cert. denied, 150 N.M. 490, 262 P.3d 1143, 2010 N.M. LEXIS 544 (N.M. 2010).

      Sentence.

           —Generally.

In a case where the district court entered an order of conditional discharge dismissing defendant's first drug trafficking charge, defendant's conditional discharge could not be used for the purpose of enhancing defendant's second drug trafficking sentence because the conditional discharge statute was ambiguous as it neither defined the term “offense” as it was used in the statute, nor stated whether a drug trafficking offense could be enhanced based on a prior conditional discharge; and the conditional discharge statute did not clearly and unequivocally alert a person in defendant's position to the possibility of enhancing her subsequent drug trafficking sentence as a result of her prior conditional discharge.  State v. Lassiter, 2016-NMCA-078, 2016 N.M. App. LEXIS 45 (N.M. Ct. App. 2016).

Former  40A-29-3, 1953 Comp., which set out the penalty for a first-degree felony, did not apply to a second conviction for trafficking in heroin, contrary to former 54-11-20(B)(2), 1953 Comp., because trafficking in heroin was not a first-degree felony and former 54-11-20B(2), 1953 Comp., contained its own penalty provisions that the trial court had authority to impose under former 40A-29-11, 1953 Comp. State v. Sanchez, 1982-NMSC-032, 97 N.M. 521, 641 P.2d 1068, 1982 N.M. LEXIS 2832 (N.M. 1982).

           —Excessive.

When defendant was convicted of trafficking a controlled substance, double use of his previous conviction for the same offense to prove the offense of conspiracy to commit a first degree felony pursuant to 30-28-2B(1), (2) NMSA 1978 and to enhance his conspiracy sentence under the New Mexico habitual offender statute was improper. State v. Lacey, 2002-NMCA-032, 131 N.M. 684, 41 P.3d 952, 2002 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 113 (N.M. 2002).

      Separate or multiple offenses.

Where a defendant’s acts were separated by time and his intervening conduct, and where the legislature had defined trafficking to include both giving away and selling drugs, the element of the defendant’s intent supported treating each act of distribution as a separate offense. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, 1996 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 121 N.M. 375, 911 P.2d 883, 1996 N.M. LEXIS 67 (N.M. 1996).

      Sufficient evidence to convict.

Where the tests showed, and the parties stipulated, that the substance given to the police by a witness after obtaining it from defendant was cocaine, and that witness identified defendant in court as the person that had sold him the crack cocaine, there was sufficient evidence to convict defendant of trafficking in cocaine. State v. Cooper, 1998-NMCA-180, 126 N.M. 500, 972 P.2d 1, 1998 N.M. App. LEXIS 163 (N.M. Ct. App.), cert. denied, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 455 (N.M. 1998).

      Trafficking.

           —Marijuana.

Where defendant was twice prosecuted, and both prosecutions were based on the same sale of marijuana, defendant was not placed in jeopardy in the first proceeding, which charged him with intentionally trafficking in marijuana in violation of former 54-11-20A(2), 1953 Comp. and his conviction was not barred by the double jeopardy provision of N.M. Const. art II  § 15; although marijuana was a Schedule I controlled substance, 54-11-20A(2), 1953 Comp. required defendant to have trafficked a narcotic drug and, under former  54-11-2O and P, 1953 Comp. marijuana was not a narcotic drug. State v. Mabrey, 1975-NMCA-098, 88 N.M. 227, 539 P.2d 617, 1975 N.M. App. LEXIS 698 (N.M. Ct. App. 1975).

Research References and Practice Aids

      Cross references.

Definitions, 30-42-3 NMSA 1978.