State v. Hubbard

828 P.2d 971, 113 N.M. 538
CourtNew Mexico Court of Appeals
DecidedJanuary 31, 1992
Docket12650
StatusPublished
Cited by24 cases

This text of 828 P.2d 971 (State v. Hubbard) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hubbard, 828 P.2d 971, 113 N.M. 538 (N.M. Ct. App. 1992).

Opinion

OPINION

PICKARD, Judge.

Defendant appeals his conviction for trafficking cocaine and the enhancement of his sentence as a habitual offender. Defendant raises the following issues on appeal: (1) whether there was insufficient evidence to convict him for trafficking cocaine, and (2) whether the trial court erred in enhancing his sentence under both the Controlled Substances Act (CSA) and the general habitual-offender statute. We affirm.

FACTS

Police officers arrived at defendant’s residence to search it pursuant to a valid search warrant. The officers ordered defendant to empty his pockets. From his right front pocket, defendant removed a clear plastic bag that contained approximately eighteen grams of cocaine. Officers recovered other items from the residence during their search, including a set of scales, a mirror with a straw, approximately $419 in cash consisting of bills in small denominations, and a slip of paper containing several names. As a result of the evidence obtained in the search, defendant was arrested and charged with possession of cocaine with intent to distribute pursuant to NMSA 1978, Section 30-31-20 (Repl.Pamp.1989).

Defendant was tried before the court without a jury. Detective Fred Hill, a narcotics officer employed by the Roswell Police Department, was the state’s chief witness. Detective Hill testified that the amount of cocaine found on defendant’s person, eighteen grams, was not an amount of drugs that a casual or regular user would have readily available. In response to a question from the court, Detective Hill testified that it was unreasonable for a cocaine addict to possess eighteen grams of cocaine. Detective Hill further stated that heavy cocaine users support their habits by drug dealing, burglarizing, and shoplifting. Detective Hill testified that, in his experience as a police officer, the small denominations of the bills seized at defendant’s residence indicated that the cash would be used to make change for narcotics sales or that defendant had made drug sales.

On cross-examination, Detective Hill stated that the officers conducting the search at defendant’s residence did not find any materials to package cocaine, such as plastic bags or “bindles,” and that no substance usually used to cut cocaine was found. Detective Hill also stated that, although he has seen all types of scales used by drug dealers, the scale found at defendant’s residence “would not impress other drug dealers.”

Defendant testified on his own behalf. He admitted that he was a cocaine addict and that his habit involved ingesting as much of the drug as possible without stopping. Defendant’s sister, Sandra Smith, testified that at the time of her brother’s arrest he was sick and addicted to cocaine. According to Ms. Smith, defendant’s attempts to conquer his cocaine addiction faltered after his daughter’s accidental death in 1989. The court found defendant guilty of trafficking cocaine.

Following defendant’s conviction, the state filed a supplemental criminal information alleging that defendant was a habitual criminal offender and requesting that defendant’s sentence be enhanced under both NMSA 1978, Section 31-18-17 (Repl.Pamp.1990), the general habitual-offender statute, and Section 30-31-20, the CSA. Defendant admitted to having two prior felony convictions. Defendant’s first conviction was in 1981, for felony possession of marijuana. However, defendant’s second felony conviction was actually two convictions for separate crimes committed in 1988. Specifically, in 1988, defendant was convicted for trafficking cocaine and for possessing marijuana with intent to distribute. The two convictions resulted from an arrest in which defendant possessed both types of controlled substances.

As a result of defendant’s prior conviction for trafficking cocaine, the trial court sentenced defendant as a first degree felon under the enhancement provisions of Section 30-31-20(B)(2). In addition, the trial court enhanced defendant’s sentence by four years under Section 31-18-17(C), due to defendant’s two prior felony convictions involving marijuana.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was only sufficient evidence to convict him of possession of cocaine, and insufficient evidence to support a conviction for trafficking. In analyzing the sufficiency of the evidence issues, the inquiry is whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each essential element of a crime charged. State v. Duran, 107 N.M. 603, 762 P.2d 890 (1988). Substantial evidence is defined as that evidence which is acceptable to a reasonable mind as adequate support for a conclusion. State v. Sparks, 102 N.M. 317, 694 P.2d 1382 (Ct.App.1985). In reviewing a judgment of conviction, we view the evidence in the light most favorable to the verdict, resolving all conflicts therein and indulging all reasonable inferences therefrom in the light most favorable to the judgment. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). We do not reweigh the evidence and may not substitute our judgment for that of the fact finder. Id.

Defendant argues that the state failed to prove that he intended to transfer the cocaine to another. Intent to distribute may be inferred when the amount of controlled substance possessed is inconsistent with personal use. State v. Curry, 107 N.M. 133, 753 P.2d 1321 (Ct.App.1988). Intent may be proved by inference from surrounding facts and circumstances, such as quantity and manner of packaging of the controlled substance. State v. Muniz, 110 N.M. 799, 800 P.2d 734 (Ct.App.1990).

Viewing the evidence in the light most favorable to the verdict, we hold that there was sufficient evidence to support defendant’s conviction for trafficking by possession with intent to distribute cocaine. Detective Hill’s testimony constitutes evidence from which a reasonable mind could infer that defendant intended to transfer cocaine to another. See State v. Muniz; State v. Sparks.

Defendant argues that, because Detective Hill’s testimony was evasive and vague at times, the trial court erred in relying on it to prove defendant’s guilt. It is for the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony. See State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972).

Defendant argues at length that it is what the police did not find at his residence that proves his innocence on the trafficking charge. Defendant contends that, because police did not find items that he could use to package cocaine for sale, or did not find any substance with which he could dilute cocaine, there was insufficient evidence to convict him of trafficking.

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Bluebook (online)
828 P.2d 971, 113 N.M. 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hubbard-nmctapp-1992.