30-31-22.  Controlled or counterfeit substances; distribution prohibited.

Generally.

Authority of trial court.

Confrontation rights.

Construction with other laws.

Defenses.

Double jeopardy.

Due process.

Elements.

           —Intent to distribute.

Entrapment.

Evidence.

           —Generally.

           —Admissible.

           —Inadmissible.

           —Sufficient.

           —Substantial.

Illegal search and seizure.

Indictment.

Instructions.

Jurors.

Jury question.

School.

Search and seizure.

Sentence.

Specific intent.

Suspension.

Waiver.

Distribution of drugs is prohibited by 30-31-22 NMSA 1978; except as authorized by the Controlled Substances Act it is unlawful for any person to intentionally distribute or possess with intent to distribute a controlled substance except a substance enumerated in Schedules I or II which was a narcotic drug. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, 1981 N.M. App. LEXIS 694 (N.M. Ct. App. 1981), cert. denied, 95 N.M. 669, 625 P.2d 1186, 1981 N.M. LEXIS 2288 (N.M. 1981), cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145, 1981 U.S. LEXIS 3536 (U.S. 1981), overruled,  State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, 1994 N.M. App. LEXIS 56 (N.M. Ct. App. 1994).

Trial court could impose a three-year sentence upon revocation of defendant’s probation for distribution of a controlled substance, in violation of 30-31-22 NMSA 1978, even though language used at oral sentencing appeared to impose a two-year suspended sentence, as the written sentence clearly imposed a deferred sentence; for a third degree felony the sentence is to be for three years. State Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, 1982 N.M. App. LEXIS 952 (N.M. Ct. App.), cert. denied, 99 N.M. 47, 653 P.2d 878, 1982 N.M. LEXIS 3037 (N.M. 1982).

Where defendants were charged with of unlawful distribution of a controlled substance (Quaalude) contrary to 30-31-22 NMSA 1978 of the Controlled Substances Act, and of conspiring to distribute controlled substances (Quaalude) contrary to 30-28-2 NMSA 1978 and the Controlled Substances Act, the charges were proper; 26-1-16A NMSA 1978 was not exclusive in covering the unauthorized distribution of Quaalude. State v. Reams, 1982-NMSC-075, 98 N.M. 215, 647 P.2d 417, 1982 N.M. LEXIS 2865 (N.M. 1982).

Lesser penalties stated in former 54-11-23B(1), 1953 Comp. and 54-11-23B(2), 1953 Comp. (now 30-31-23 NMSA 1978) were not found to have applied to defendant’s violation of former 54-11-22C, 1953 Comp. (now 30-31-22 NMSA 1978); therefore, a trial court was not found to have erred when it refused a requested instruction based on former 54-11-23B(1), 1953 Comp. and 54-11-23B(2), 1953 Comp. (now 30-31-23 NMSA 1978) because those provisions did not apply to distribution of marijuana. State v. Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460, 1978 N.M. App. LEXIS 576 (N.M. Ct. App. 1978).

Prior conviction for the sale of LSD was properly used to enhance defendant’s sentence for burglary and it was immaterial which law applied to the LSD offense because it was the fact of the prior felony that was the basis for the enhanced sentence. There was no conflict between the provisions of former 54-11-22A, 1953 Comp. (now  30-31-22 NMSA 1978) and former 40A-29-5, 1953 Comp. State v. Jordan, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620, 1975 N.M. App. LEXIS 699 (N.M. Ct. App. 1975).

Requested instruction defining agency was properly refused in connection with defendant’s trial on two counts of trafficking heroin and one count of distribution of marijuana in violation of former 54-11-22A(1), 1953 Comp. (now 30-31-22 NMSA 1978) because agency was not a defense to a distribution charge under former 54-11-2G or 54-11-2J, 1953 Comp. (now 30-31-2 NMSA 1978). State v. Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460, 1978 N.M. App. LEXIS 576 (N.M. Ct. App. 1978).

In defendant’s trial on the offense of selling and distributing marijuana in violation of former 54-11-20, 54-11-22A(1), 1953 Comp.(now 30-31-20 and 30-31-22 NMSA 1978, respectively), the evidence raised a factual question concerning defendant’s predisposition to sell or to distribute heroin and the extent of the agent’s activity in connection with the heroin; thus, the trial court properly submitted the issue of entrapment to the jury. State v. Wilson, 1972-NMCA-059, 1974-NMCA-059, 86 N.M. 348, 524 P.2d 520, 1974 N.M. App. LEXIS 663 (N.M. Ct. App. 1974).

Separate crimes of possession under 30-31-23 NMSA 1978 and possession with intent to distribute under 30-31-22 NMSA 1978 were intended to apply in the alternative when based on a single act of possession; because the methamphetamine at issue was found in defendant’s control during a single occurrence, defendant committed only one act of possession, and the trial court subjected defendant to double jeopardy by convicting defendant of both offenses and imposing multiple punishments. State v. Quick, 2009-NMSC-015, 146 N.M. 80, 206 P.3d 985, 2009 N.M. LEXIS 360 (N.M. 2009).

Proving a violation of possess with intent to distribute necessarily required the state to prove that defendant possessed the methamphetamine and therefore simple possession was subsumed within possession with intent to distribute. State v. Lopez, 2008-NMCA-002, 143 N.M. 274, 175 P.3d 942, 2007 N.M. App. LEXIS 143 (N.M. Ct. App.), cert. denied, 143 N.M. 213, 175 P.3d 307, 2007 N.M. LEXIS 687 (N.M. 2007).

Defendant’s conviction for possession of marijuana with intent to distribute contrary to 30-31-22A(1)(a) NMSA 1978 was reversed under N.M. Const. art II  § 15 where his motor vehicle had been civilly forfeited under the Controlled Substances Act. State v. Antillon, 2000-NMSC-014, 2000-NMSC-014, 129 N.M. 114, 2 P.3d 315, 1999 N.M. LEXIS 389 (N.M. 1999).

Marijuana is not a “narcotic drug” within the meaning of former 54-11-2, 1953 Comp. (now 30-31-2 NMSA 1978); therefore, conviction for distribution of marijuana under former 54-11-22, 1953 Comp. (now 30-31-22 NMSA 1978) did not violate defendant’s double jeopardy protections where he was originally charged with intentionally trafficking in marijuana under former 54-11-20, 1953 Comp. (now 30-31-20 NMSA 1978) requiring trafficking in a “narcotic drug,” and the charge was dismissed for failure to prove a statutory violation. 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).

Possession of less than one ounce of marijuana in violation of former 54-11-23B, 1953 Comp. (now 30-31-23B NMSA 1978), is a lesser included offense of distribution of a small amount of marijuana for no remuneration in violation of former 54-11-22C, 1953 Comp. (now 30-31-22C NMSA 1978); principles of double jeopardy bar a prosecution for distribution after a defendant has been convicted of the lesser included charge of possession for the identical conduct. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486, 1975 N.M. App. LEXIS 635 (N.M. Ct. App. 1975), abrogated as stated in State v. Morales, No. 29,311, 2010 N.M. App. Unpub. LEXIS 462 (N.M. Ct. App. Dec. 16, 2010).

Pre-indictment delay was not unreasonable so as to violate defendant’s right of due process under U.S. Const. amends. XIV, or under N.M. Const. art II  § 14, or his right to a speedy or fair trial where a showing of reasonable delay in defendant’s prosecution for distribution of a controlled substance, 30-31-22A(2) NMSA 1978, by reason of an ongoing narcotics undercover operation, was a permissible basis for pre-indictment delay. State v. Lewis, 1988-NMCA-015, 107 N.M. 182, 754 P.2d 853, 1988 N.M. App. LEXIS 61 (N.M. Ct. App. 1988).

Evidence was sufficient to support a judgment convicting defendant of an distribution of amphetamine in violation of 30-31-22 NMSA 1978 because the State did not have to prove that the amphetamine sold by defendant was of a sufficient quantity to have a potential for abuse associated with a stimulant effect since illegally distributing any quantity of amphetamine was forbidden by law. The language of 30-31-7A(3) NMSA 1978, which defined an amphetamine as a substance having a potential for abuse associated with a stimulant effect on the central nervous system, was merely descriptive of the drug. State v. Hernandez, 1986-NMCA-017, 104 N.M. 97, 717 P.2d 73, 1986 N.M. App. LEXIS 589 (N.M. Ct. App. 1986).

Where the state proved that defendants possessed marijuana with intent to distribute, the absence of evidence that defendants planned to distribute the marijuana within New Mexico was not a basis for reversal; the crime as defined by 54-11-22, 1953 Comp. (now 30-31-22 NMSA 1978) was complete if there was possession with the requisite intent, and the state was not require to prove the place of the intended distribution. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, 1974 N.M. App. LEXIS 753 (N.M. Ct. App. 1974).

Where the evidence pertaining to whether defendant was improperly induced to unlawfully sell marijuana in violation of former 54-5-14, 1953 Comp. (now 30-31-22 NMSA 1978) presented a factual issue, the trial court properly refused to find entrapment as a matter of law and submitted the issue to the jury. State v. Martinez, 1971-NMCA-110, 83 N.M. 13, 487 P.2d 923, 1971 N.M. App. LEXIS 727 (N.M. Ct. App. 1971).

Defendant was convicted of possession of a controlled substance with intent to distribute in violation of 30-31-22 NMSA 1978 upon sufficient evidence where he was in a closed bathroom alone with the drugs and paraphernalia, where he had no clean clothes with him, and where a folded business card found with a powdery substance and with handwritten notations of what appeared to be drug transactions, connected him to the control over and distribution of the drugs. State v. Barber, 2003-NMCA-053, 133 N.M. 540, 65 P.3d 1095, 2003 N.M. App. LEXIS 9 (N.M. Ct. App. 2003), aff'd, 2004-NMSC-019, 135 N.M. 621, 92 P.3d 633, 2004 N.M. LEXIS 289 (N.M. 2004).

Defendant’s challenge to the jury finding on the element of possession in support of defendant’s conviction for possession of marijuana with intent to distribute under 30-31-22A(1) NMSA 1978 failed because the record showed that the jury could have reasonably concluded from the circumstantial evidence that defendant knew of the marijuana in the truck and exercised control over it based on the following: defendant was the only person in the truck upon arrival at a national boarder checkpoint; the truck smelled of silicone, which was often used to seal false compartments and to conceal the odor of drugs in them; the interior of the truck was altered to accommodate the hidden compartment so that the driver sat unusually high in the seat and close to the steering wheel; defendant’s conduct at the checkpoint that included lies, excessive nervousness, and failure to make eye contact; and defendant’s inconsistent testimony at trial. State v. Hernandez, 1998-NMCA-082, 125 N.M. 661, 964 P.2d 825, 1998 N.M. App. LEXIS 67 (N.M. Ct. App. 1998).

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’s conviction for trafficking cocaine and possession of marijuana with intent to distribute contrary to 30-31-20 NMSA 1978 and 30-31-22 NMSA 1978, respectively, was proper because sufficient evidence existed that defendant possessed intent to distribute cocaine and intent to possess marijuana when he had constructive possession of the marijuana. State v. Muniz, 1990-NMCA-105, 110 N.M. 799, 800 P.2d 734, 1990 N.M. App. LEXIS 109 (N.M. Ct. App.), cert. denied, 110 N.M. 749, 799 P.2d 1121, 1990 N.M. LEXIS 335 (N.M. 1990).

There was sufficient evidence to convict defendants of possession with intent to distribute marijuana when the car they were driving contained 10 pounds of marijuana and a scale. State v. Sandoval, 1979-NMCA-006, 92 N.M. 476, 590 P.2d 175, 1979 N.M. App. LEXIS 791 (N.M. Ct. App. 1979).

Court upheld defendants’ conviction for possession of marijuana, in violation of former 54-11-22A(1), 1953 Comp. (now 30-31-22 NMSA 1978), because there was evidence from which the jury could have determined that the substance possessed by defendants was “Cannabis sativa L.” State v. Esquibel, 1977-NMCA-006, 90 N.M. 117, 560 P.2d 181, 1977 N.M. App. LEXIS 568 (N.M. Ct. App.), cert. denied, 90 N.M. 254, 561 P.2d 1347, 1977 N.M. LEXIS 1155 (N.M. 1977).

Defendant was properly convicted of the unlawful possession, sale, and delivery of marijuana because the evidence sufficiently showed him as a principal under former 41-6-34, 1953 Comp. (now 30-31-22 NMSA 1978) in the sale of marijuana to an undercover agent where defendant’s companions transacted the sale, but defendant was present, handed the marijuana to his companion, and told the agent that they were on their way to sell more marijuana. State v. Favela, 1968-NMCA-065, 79 N.M. 490, 444 P.2d 1001, 1968 N.M. App. LEXIS 479 (N.M. Ct. App. 1968).

Agent’s testimony that defendant sold him marijuana on two occasions was substantial evidence in support of defendant’s conviction for distributing marijuana, contrary to 30-31-22 NMSA 1978. State v. Laskay, 1986-NMCA-008, 103 N.M. 799, 715 P.2d 72, 1986 N.M. App. LEXIS 583 (N.M. Ct. App. 1986).

Where defendant was charged possession of marijuana with intent to distribute in violation of  30-31-22 NMSA 1978, and possession of drug paraphernalia, in violation of 30-31-25.1A NMSA 1978, a prosecutor did not have a duty to instruct the grand jury on defendant’s right to use marijuana as part of his honestly held religious beliefs; although the prosecutor had the duty to present evidence that directly negated the guilt of the target where the prosecutor was aware of such evidence, pursuant to  31-6-11B NMSA 1978, the prosecutor had no duty to instruct the grand jury on defendant’s religious-use defense.  State v. Augustin M., 2003-NMCA-065, 133 N.M. 636, 68 P.3d 182, 2003 N.M. App. LEXIS 21 (N.M. Ct. App. 2003), cert. quashed, 135 N.M. 170, 86 P.3d 48, 2004 N.M. LEXIS 27 (N.M. 2004), cert. quashed, 135 N.M. 170, 86 P.3d 48, 2004 N.M. LEXIS 28 (N.M. 2004).

Where defendant was convicted of possession of a controlled substance with intent to distribute in violation of 30-31-22 NMSA 1978, a trial court did not commit fundamental error under Rule 12-216B(2) NMRA by failing to issue a jury instruction under UJI 14-3130 because the failure to instruct on a definition contained in a Use Note did not elevate a definition to an essential element and because the failure to instruct on the definition was not fundamental error. State v. Barber, 2003-NMCA-053, 133 N.M. 540, 65 P.3d 1095, 2003 N.M. App. LEXIS 9 (N.M. Ct. App. 2003), aff'd, 2004-NMSC-019, 135 N.M. 621, 92 P.3d 633, 2004 N.M. LEXIS 289 (N.M. 2004).

Where the trial court instructed the jury to find that defendant did knowingly, unlawfully, and feloniously distribute, sell, barter, or give away a controlled substance, the instruction was substantially in terms of the language of former 54-11-22A, 1953 Comp., which defined a specific intent; thus, the trial court sufficiently instructed the jury on all essential elements of the crime, as required by former 41-23-41, 1953 Comp. State v. Tucker, 1974-NMCA-049, 86 N.M. 553, 525 P.2d 913, 1974 N.M. App. LEXIS 691 (N.M. Ct. App.), cert. denied, 86 N.M. 528, 525 P.2d 888, 1974 N.M. LEXIS 1437 (N.M. 1974).

With respect to a defendant’s contention, on appeal of his conviction for the unlawful distribution of a controlled substance, in asserted violation of 54-11-22A, 1953 Comp. (now 3031-22A NMSA 1978), that the instructions to the jury failed to include a proper instruction on criminal intent, this contention was without merit, where not only (1) the defendant failed to object and to request a specific instruction, but also (2) any objection would have done no good, inasmuch as the instruction given, which was phrased in the terms of the statutory requirement of intent, was sufficient.  State v. Fuentes, 1973-NMCA-069, 85 N.M. 274, 511 P.2d 760, 1973 N.M. App. LEXIS 721 (N.M. Ct. App.), cert. denied, 85 N.M. 265, 511 P.2d 751, 1973 N.M. LEXIS 1344 (N.M. 1973).

In a prosecution for unlawfully selling or disposing of marijuana contrary to former 54-5-14, 1953 Comp. (now 30-31-22 NMSA 1978), a trial court’s handwritten notation to the jury concerning an additional count was not violative of former 21-1-1(51)(2)g, 1953 Comp., which prohibited handwritten notations on jury instructions because defendant failed to preserve any objection at trial. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, 1971 N.M. App. LEXIS 666 (N.M. Ct. App.), cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161, 1971 U.S. LEXIS 783 (U.S. 1971).

In a prosecution for unlawfully selling or disposing of marijuana contrary to former 54-5-14, 1953 Comp. (now 30-31-22 NMSA 1978), a trial court’s decision to deny defendant’s motion for continuance based on the allegation that the jury array was biased against him was not an abuse of discretion because a motion for a continuance for cause under former 21-8-9, 1953 Comp. was addressed to the discretion of the court and there was no evidence that any electronic media communication had prejudiced the jury pool. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, 1971 N.M. App. LEXIS 666 (N.M. Ct. App.), cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161, 1971 U.S. LEXIS 783 (U.S. 1971).

Appellate court refused to consider the issue whether defendant was entitled a jury instruction on the lesser-included offense of possession because defendant failed to present to the trial court a correct written jury instruction as required by former 41-31-21G, 1953 Comp. (now 30-31-22 NMSA 1978); the jury instruction proposed by defendant was incorrect because it left for the jury to decide whether heroin was a narcotic drug. State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180, 1974 N.M. App. LEXIS 629 (N.M. Ct. App. 1974).

Police officer’s search of defendant’s garden, a parcel protected by a fence approximately five feet in height, violated defendants’ reasonable expectation of privacy, in contravention of U.S. Const. amends. IV and N.M. Const. art II  § 10; thus, the marijuana evidence seized as a result thereof was not admissible against defendants on a charge of possession of more than 100 pounds of marijuana with intent to distribute, 30-31-22A(1)(c) NMSA 1978. State v. Chort, 1978-NMCA-037, 91 N.M. 584, 577 P.2d 892, 1978 N.M. App. LEXIS 550 (N.M. Ct. App. 1978).

Where there was confusion as to whether defendant received a suspended sentence orally or a deferred sentence in writing for distribution of a controlled substance for pleading guilty to distribution of a controlled substance, methaqualone or quaaludes, in violation of 30-31-22 NMSA 1978, the sentence imposed in writing was to prevail. State Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, 1982 N.M. App. LEXIS 952 (N.M. Ct. App.), cert. denied, 99 N.M. 47, 653 P.2d 878, 1982 N.M. LEXIS 3037 (N.M. 1982).