This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-35504
5 AMANDA NATIVIDAD CHAVEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge
9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge. 1 {1} Defendant Amanda Natividad Chavez appeals her convictions for one count
2 trafficking heroin (by distribution), contrary to NMSA 1978, Section 30-31-20
3 (2006), one count trafficking heroin (by possession with intent to distribute),
4 contrary to Section 30-31-20, and one count of trafficking methamphetamine (by
5 possession with intent to distribute), contrary to Section 30-31-20. Defendant
6 argues that (1) her convictions for trafficking heroin and methamphetamine by
7 possession with intent to distribute violate the prohibition against double jeopardy,
8 (2) the State presented insufficient evidence to sustain her convictions, (3)
9 evidence admitted violated her Sixth Amendment right to confront witnesses, and
10 (4) the district court erred in denying Defendant’s Pohl motion. We affirm in all
11 respects.
12 BACKGROUND
13 {2} On August 11, 2014, an Albuquerque Police Department (APD) undercover
14 narcotics team conducted a buy-bust operation with a confidential informant (CI)
15 at a hotel off Coors and Iliff in Albuquerque, New Mexico. A buy-bust operation
16 occurs when an individual purchases narcotics, and the subsequent arrest, the
17 “bust” occurs immediately after. The narcotics team set up a buy-bust with a CI
18 and Defendant.
19 {3} In preparation of the buy-bust, Detective Herman Martinez searched the CI
20 to ensure she did not already have any drugs or money on her and then gave her
2 1 $240 in cash. Detective Martinez made note of the serial numbers of the cash. At
2 the hotel parking lot, several officers witnessed Defendant exit a white Dodge
3 pick-up truck and meet with the CI. The two then went inside the hotel where no
4 officer was able to continue observing them. Approximately five to fifteen minutes
5 later, Defendant and the CI emerged from the hotel. According to Detective Jaime
6 Rascon, as soon as Defendant saw him, fully marked as a police officer, she started
7 running away. Sergeant Glen Stout drove up to the sidewalk where Defendant was
8 running and got out of his vehicle and yelled, “ ‘Stop,’ and then began pursuing her
9 on foot.” During the pursuit, Sergeant Stout lost sight of Defendant’s right hand
10 and testified that it looked like Defendant reached into her purse. Detective Daniel
11 Lopez testified that as Defendant was being chased by Sergeant Stout, he
12 witnessed Defendant throw two items over a wrought iron fencing that separated
13 the properties. During the chase, and due to his concern that Defendant could be
14 reaching for a deadly weapon concealed within her purse, Sergeant Stout decided
15 to push Defendant to throw her off balance as a “distraction technique.” Defendant
16 then fell to the ground and sustained abrasions to her side and her forehead.
17 Sergeant Stout and Detective Isaac Maes placed Defendant in handcuffs, called for
18 medical assistance in light of Defendant’s injuries, and searched Defendant’s
19 person locating $240 hidden in Defendant’s bra. Detective Martinez testified that
20 the recovered currency was the same $240 he had given the CI, although at trial he
3 1 failed to recall or demonstrate how he documented the corresponding serial
2 numbers.
3 {4} After ensuring the CI was safe, Detective Lopez returned to where
4 Defendant was apprehended by Sergeant Stout and Detective Maes. Detective
5 Lopez stepped over the wrought iron fence to retrieve the items that he witnessed
6 Defendant throw. Detective Lopez discovered two baggies of drugs that were later
7 tested and determined to be methamphetamine and heroin. Detective Lopez,
8 Detective Maes, and Sergeant Stout testified that they had never before seen that
9 quantity of drugs on the ground in public without explanation. Also, the CI
10 provided Detective Martinez with narcotics, which too were later tested and
11 determined to be heroin. No detective witnessed the CI and Defendant’s exchange
12 of a controlled substance.
13 {5} After Defendant was transported to the hospital, she asked Detective Lopez
14 if she could “work off” the charges, which Detective Lopez took to indicate her
15 willingness to assist police in lieu of going to jail. Defendant’s offer was not
16 accepted. After her indictment but prior to trial, Defendant filed a complaint
17 against Sergeant Stout based upon the injuries she suffered from having been
18 pushed to the ground by him during her arrest on August 11, 2014. The Civilian
19 Police Oversight Agency investigated the complaint and concluded that Sergeant
20 Stout did not use excessive force, but did violate two Standard of Procedures
4 1 (SOP), which state (1) that photographs will be taken of all persons and officers
2 who have been injured; and (2) that all officers will notify a supervisor as soon as
3 practical when a use of force incident occurs. Also prior to trial, Defendant moved
4 for disclosure of internal affairs records regarding Sergeant Stout, pursuant to State
5 v. Pohl, 1976-NMCA-089, ¶ 1, 89 N.M. 523, 554 P.2d 984. Defendant requested
6 the opportunity to review in camera Sergeant Stout’s internal affairs records,
7 arguing that such an inspection must be allowed when a defendant’s guilt or
8 innocence may hinge on what the jury believes about the officer and that such
9 information is potentially exculpatory. The district court denied the motion, finding
10 it “is something that can be duly explored at trial, the issue of [lack of]
11 documentation, or purported [lack of] documentation, and anything else that the
12 defense thinks is appropriate to present to the jury regarding the credibility of the
13 sergeant.”
14 {6} In addition to the trial testimony given by the officers that took part in the
15 buy-bust, Shea Schleman, a forensic scientist with the City of Albuquerque,
16 testified about the testing he did on the substances found on the ground near the
17 location where Defendant was arrested and the substance the CI possessed after
18 meeting with Defendant. The first item found on the ground contained seven
19 individually packaged smaller bags of a crystalline substance confirmed to be
20 methamphetamine, totaling about six grams. The second item found on the ground
5 1 contained nine individually packaged smaller bags of a dark substance confirmed
2 to be heroin, totaling about ten grams. The item that the CI possessed after meeting
3 with Defendant contained one bag containing two chunks wrapped in cellophane
4 confirmed to be nearly six grams of heroin.
5 {7} Detective Martinez, who at trial was qualified as an expert in distinguishing
6 narcotic quantities from the perspectives of trafficking and personal use, testified
7 that he considers somewhere between three to thirteen grams of heroin to be an
8 amount more consistent with trafficking methamphetamine than possessing
9 methamphetamine for personal use. He further testified that another factor he
10 considered in whether to make an arrest for trafficking was whether the narcotics
11 were individually packaged, a circumstance more consistent with trafficking than
12 with personal use. Following trial, Defendant was convicted of all counts, from
13 which she now appeals.
14 DISCUSSION
15 Defendant’s Convictions of Trafficking by Possession With Intent to 16 Distribute Methamphetamine and Heroin Do Not Violate Double Jeopardy
17 {8} “The Fifth Amendment of the United States Constitution, made applicable to
18 New Mexico by the Fourteenth Amendment, prohibits double jeopardy and
19 functions in part to protect a criminal defendant against multiple punishments for
20 the same offense.” State v. Bello, 2017-NMCA-049, ¶ 6, 399 P.3d 380 (alterations,
21 omission, internal quotation marks, and citation omitted). Defendant contends that 6 1 her convictions for trafficking methamphetamine by possession with intent to
2 distribute and trafficking heroin by possession with intent to distribute violate the
3 prohibition against double jeopardy. A double jeopardy claim is a question of law
4 that we review de novo. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710,
5 82 P.3d 77.
6 {9} At sentencing, defense counsel argued that Defendant’s convictions for
7 trafficking by possession with intent to distribute violated double jeopardy because
8 the possession of the two drugs occurred at the same time, in the same place, and
9 with the same intent. The district court disagreed and ruled that there was no
10 double jeopardy violation because the drugs “are entirely different drugs, . . . that .
11 . . require different scientific tests to prove their content and composition[,] . . .
12 have different target people to purchase them[,] . . . are different scheduled
13 narcotics, . . . [and] were also contained in separate packaging[.]” The district court
14 concluded that the drugs require “a different mens rea . . . and a different actus
15 reus.”
16 {10} We classify double jeopardy cases involving multiple punishments under
17 two categories. First, there are double description cases “in which a single act
18 results in multiple charges under different criminal statutes[.]” State v. Bernal,
19 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. Second, there are unit of
20 prosecution cases “in which an individual is convicted of multiple violations under
7 1 the same criminal statute.” Id. Since Defendant was convicted under Section 30-
2 31-20(A) for two violations, we apply a unit of prosecution analysis. This analysis
3 requires a two-part test to determine the unit of prosecution intended by the
4 Legislature. State v. Gallegos, 2011-NMSC-027, ¶¶ 31-32, 149 N.M. 704, 254
5 P.3d 655. First, “[t]he relevant inquiry . . . is whether the [L]egislature intended
6 punishment for the entire course of conduct or for each discrete act.” Swafford v.
7 State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. “If the unit of
8 prosecution is clear from the language of the statute, the inquiry is complete.” State
9 v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747. “If the unit of prosecution is not
10 clear from the statute at issue, including its wording, history, purpose, and the
11 quantum of punishment that is prescribed,” we move to the second part where we
12 must determine “whether a defendant’s acts are separated by sufficient indicia of
13 distinctness to justify multiple punishments.” Id. ¶ 33 (internal quotation marks and
14 citation omitted).
15 {11} “Our analysis begins with an examination of [Section 30-31-20(A)] . . . in
16 order to discern whether the [L]egislature intended to create a separate offense for
17 each violation of the statute that occurred during the continuous series of events.”
18 State v. Haskins, 2008-NMCA-086, ¶ 16, 144 N.M. 287, 186 P.3d 916. Section 30-
19 31-20(A)(3) provides that trafficking consists of possession with intent to
20 distribute:
8 1 (a) a controlled substance enumerated in Schedule I or II that 2 is a narcotic drug;
3 (b) controlled substance analog of a controlled substance 4 enumerated in Schedule I or II that is a narcotic drug; or
5 (c) methamphetamine, its salts, isomers and salts of isomers.
6 Heroin is a Schedule I drug, and methamphetamine is a Schedule II drug. NMSA
7 1978, § 30-31-6(B)(10) (2011, as amended 2018) (identifying “heroin” as a
8 Schedule I drug); NMSA 1978, § 30-31-7(A)(3)(c) (2007) (identifying
9 “methamphetamine” as a Schedule II drug). Defendant argues that the statute is
10 ambiguous because methamphetamine is listed under Section 30-31-20(A)(2)(a),
11 (c), (3)(a), (c) twice, as “a controlled substance enumerated in Schedule I or II that
12 is a narcotic drug,” and as “methamphetamine, its salts, isomers and salts of
13 isomers,” Defendant argues that since the “unit of prosecution is ambiguous, the
14 rule of lenity calls for a single punishment unless [her] own conduct is sufficiently
15 distinct to justify imposing multiple punishments.” The State argues that the case
16 involves two differently classified controlled substances and require different
17 scientific tests to prove their content and composition. The State contends that
18 State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277 squarely
19 resolves this case.
20 {12} We agree that Borja-Guzman is persuasive. In Borja-Guzman, the defendant
21 gave undercover officers a sample of methamphetamine and a sample of heroin.
9 1 1996-NMCA-025, ¶ 2. About four hours later, the defendant met the undercover
2 officers at the same location and sold them more quantities of methamphetamine
3 and heroin. Id. ¶¶ 2-3. The defendant was convicted of multiple trafficking
4 offenses, and he challenged the convictions on double jeopardy grounds. Id. ¶¶ 4-5.
5 He argued that the distribution of a sample of a controlled substance and the
6 subsequent sale of the same substance at the same place and to the same person
7 constitute “a single, continuous transaction involving each of the two types of
8 drugs[.]” Id. ¶ 10. In rejecting this argument, this Court held that “that the language
9 of Section 30-31-20 establishes that the [L]egislature intended to punish each
10 separate transfer of controlled substances.” Borja-Guzman, 1996-NMCA-025, ¶
11 14. This Court affirmed the defendant’s convictions of trafficking by distribution
12 of heroin and methamphetamine. Id. ¶¶ 22, 30.
13 {13} Bello is also useful in our analysis. In Bello, the defendant was convicted of
14 trafficking cocaine by distribution and trafficking cocaine by possession with
15 intent to distribute. 2017-NMCA-049, ¶ 1. The defendant sold crack cocaine to an
16 undercover officer for $20 and immediately after, the undercover officer asked if
17 the defendant had any more to sell. Id. ¶¶ 3-4. The defendant then sold him a
18 second rock for $10. Id. ¶ 4. This Court did not reach the second prong because it
19 held that the first transfer and the second transfer that occurred “moments later”
10 1 arose from two separate transfers of a controlled substance, and therefore fell
2 “within the Legislature’s authorization for separate punishment.” Id. ¶ 14.
3 {14} Like Bello, we do not reach the second part of the test because we conclude
4 that the Legislature defined the unit of prosecution to be one transfer of a different
5 controlled substance. In the present case, the question is whether different
6 “controlled substances,” possessed at the same time, constitute a separate transfer.
7 A “controlled substance” is defined as “a drug or substance listed in Schedules I
8 through V of the Controlled Substances Act.” NMSA 1978 § 30-31-2(E) (2009, as
9 amended through 2017). Defendant’s convictions arose from two baggies, one with
10 methamphetamine and one with heroin. The Legislature has defined
11 methamphetamine and heroin under different schedules. See § 30-31-6(B)(10); §
12 30-31-7(A)(3)(c); NMSA 1978 § 30-31-5(A)-(B) (1972) (discussing the criteria for
13 Schedule I and Schedule II controlled substances). Possessing both
14 methamphetamine and heroin with intent to distribute constitutes separate
15 transfers. The two controlled substances require different scientific testing and are
16 critically different drugs. Defendant’s argument that the statute is unclear because
17 prosecution for methamphetamine exists under two subsections is meritless. The
18 various avenues for prosecution merely demonstrate a legislative intent to ensure
19 the ability to prosecute for the transfer of methamphetamine. See, e.g., Borja-
20 Guzman, 1996-NMCA-025, ¶ 13 (analyzing Section 30-31-20(A) and concluding
11 1 that “[t]he various means of trafficking . . . evinces a legislative intent to authorize
2 prosecution and punishment for each separate transfer of a controlled substance”).
3 We conclude that Defendant’s convictions under Section 30-31-20(A)(3) for
4 trafficking by possession with intent to distribute heroin and methamphetamine do
5 not violate double jeopardy.
6 There Was Sufficient Evidence to Sustain Defendant’s Convictions
7 {15} Defendant challenges the sufficiency of the evidence to support her
8 convictions of trafficking heroin by distribution and trafficking by possession of
9 methamphetamine and heroin with intent to distribute. Defendant contends that the
10 State’s evidence consisted of testimony from law enforcement officers who never
11 actually saw a drug transaction and never observed Defendant with drugs on her
12 person. The State responds that Defendant’s argument on appeal “was grist for
13 cross-examination regarding the credibility of the officers, but is not a ground for
14 setting aside the judgment.”
15 {16} The test for sufficiency of the evidence is “whether substantial evidence of
16 either a direct or circumstantial nature exists to support a verdict of guilt beyond a
17 reasonable doubt with respect to every element essential to a conviction.” State v.
18 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. “A reviewing court
19 must view the evidence in the light most favorable to the state, resolving all
20 conflicts therein and indulging all permissible inferences therefrom in favor of the
12 1 verdict.” Id. Our Supreme Court has expressly established a two-step process that
2 requires us to “draw every reasonable inference in favor of the jury’s verdict and
3 then to evaluate whether the evidence, so viewed, supports the verdict beyond a
4 reasonable doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076
5 (emphasis, internal quotation marks, and citation omitted).
6 {17} In order to find Defendant guilty of possession of both methamphetamine
7 and heroin with intent to distribute, the State had to prove beyond a reasonable
8 doubt that on or about August 11, 2014, Defendant had methamphetamine and
9 heroin in her possession, that she knew it was methamphetamine and heroin or
10 believed it to be methamphetamine and heroin, and that she intended to transfer the
11 substances to another. UJI 14-3104 NMRA. With regard to this charge, Detective
12 Lopez saw Defendant throw items over a fence as she was running from Sergeant
13 Stout. He later retrieved two baggies, one containing methamphetamine and one
14 containing heroin, from that area. Detective Lopez, Detective Maes, and Sergeant
15 Stout testified that they had never seen that quantity of drugs on the ground
16 without explanation. Defendant offered to “work off” the charges once arrested,
17 and ran away from officers when she discovered they were police. Both actions
18 can be considered to indicate consciousness of guilt. See State v. Flores, 2010-
19 NMSC-002, ¶ 23, 147 N.M. 542, 226 P.3d 641 (providing that “evidence of flight
20 or an attempt to deceive the police may prove consciousness of guilt” (internal
13 1 quotation marks and citation omitted)). Detective Martinez qualified as an expert
2 in distinguishing from personal use and trafficking use, testified that he would
3 arrest for heroin trafficking upon the discovery of between three and thirteen grams
4 of heroin. Detective Lopez found about ten grams of heroin attributable to
5 Defendant. Similarly, Detective Martinez testified that he would arrest for
6 methamphetamine trafficking in circumstances where between nine to three grams
7 were attributable to a suspect. Detective Lopez found about six grams of
8 methamphetamine attributable to Defendant. As well, both these substances were
9 packaged in multiple individual packages, consistent with trafficking and not
10 personal use.
11 {18} To convict Defendant of trafficking heroin by distribution, the State had to
12 prove beyond a reasonable doubt that on or about August 11, 2014, Defendant
13 transferred heroin to another, and she knew it was heroin. UJI 14-3110 NMRA.
14 With regard to this charge, before meeting Defendant, the CI did not have any
15 drugs on her, but had $240. After meeting with the CI, Defendant did not have any
16 money but had nearly six grams of heroin. After the arrest, Defendant revealed she
17 had $240 in her bra. The serial numbers matched what Detective Martinez had
18 given the CI, according to Detective Martinez’s testimony.
19 {19} Drawing all reasonable inferences from the evidence in favor of the verdict,
20 we conclude that the evidence was sufficient to support Defendant’s convictions
14 1 for trafficking by distribution and trafficking by possession with intent to
2 distribute. See State v. Otero, 1972-NMCA-131, ¶ 6, 84 N.M. 257, 501 P.2d 1077
3 (recognizing that a conviction will not be set aside when the conviction is
4 supported by substantial evidence even if the evidence was circumstantial).
5 We Do Not Reach Defendant’s Confrontation Clause Claim
6 {20} Defendant argues that “the trial court erred in admitting testimony about the
7 controlled drug buy conducted by a non-testifying CI,” in violation of Defendant’s
8 Sixth Amendment right to confrontation. Defendant contends that the case turns on
9 the statement that “the unknown CI” made to Officer Martinez “that she would be
10 buying drugs from [Defendant].” However, Defendant fails to cite to the record
11 proper with any specificity what statement or statements she is referring to in this
12 argument. Even the State finds itself trying to determine where in the record these
13 statements were admitted into evidence and the content of any such statements. We
14 decline to search the record for these statements in support of Defendant’s
15 argument. See Rule 12-318(A)(4) NMRA (stating the rules of appellate procedure
16 require citations to the record proper); Muse v. Muse, 2009-NMCA-003, ¶ 72, 145
17 N.M. 451, 200 P.3d 104 (“We will not search the record for facts, arguments, and
18 rulings in order to support generalized arguments.”). “We will not review unclear
19 arguments, or guess at what [a party’s] arguments might be.” Headley v. Morgan
20 Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. “To rule on
15 1 an inadequately briefed issue, [the appellate court] would have to develop the
2 arguments itself, effectively performing the parties’ work for them.” Elane
3 Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53. Finding that
4 Defendant has not cited to the record proper to alert us where the alleged error
5 occurred, we decline to address this argument.
6 District Court Did Not Err in Denying Defendant’s Motion for In Camera 7 Review of Sergeant Stout’s Internal Affairs Records
8 {21} On appeal, Defendant asserts that the district court erred in denying
9 Defendant’s Pohl motion for in camera review of Sergeant Stout’s internal affairs
10 records and thereby limited her ability to question the credibility of Sergeant Stout.
11 {22} “A trial judge’s denial of a defendant’s discovery requests will be reviewed
12 according to an abuse of discretion standard.” State v. Bobbin, 1985-NMCA-089,
13 ¶ 7, 103 N.M. 375, 707 P.2d 1185. “In order for an abuse of discretion to be
14 reversible, the defendant must demonstrate prejudice.” State v. Garcia, 2013-
15 NMCA-064, ¶ 27, 302 P.3d 111. Records are normally discoverable if reasonably
16 calculated to lead to the discovery of admissible evidence. See Rule 5-503(C)
17 NMRA. “While records need not be admissible to be discoverable, a proponent of
18 discovery may still be required to provide a reasonable basis on which to believe
19 that it is likely the records contain material information.” State v. Branch, 2018-
20 NMCA-031, ¶ 40, 417 P.3d 1141 (internal quotation marks and citation omitted).
16 1 {23} In Pohl, this Court held that the defendant made a sufficient showing to
2 require inspection of police personnel records when the “defendant had shown two
3 prior instances of the officer[’]s alleged misconduct.” 1976-NMCA-089, ¶ 7. In
4 that case, the records of previous misconduct were material to the defense because
5 “the defendant’s guilt or innocence . . . hinge[d] on whether the jury believe[d] the
6 arresting officer [was] the aggressor.” Id. ¶ 6.
7 {24} The present case is easily distinguishable. Defendant’s guilt or innocence did
8 not hinge on Sergeant Stout’s credibility. Sergeant Stout’s internal affairs records
9 were not material to the nature of Defendant’s drug trafficking charges.
10 Additionally, six law enforcement officers including Sergeant Stout were present at
11 the buy-bust and five of them testified at trial. We conclude that the district court
12 did not abuse its discretion in denying Defendant’s Pohl motion.
13 CONCLUSION
14 {25} For the aforementioned reasons, we affirm Defendant’s convictions.
15 {26} IT IS SO ORDERED.
16 _____________________________ 17 M. MONICA ZAMORA, Judge
18 WE CONCUR:
19 ___________________________
17 1 J. MILES HANISEE, Judge
2 ___________________________________ 3 STEPHEN G. FRENCH, Judge