State v. Lopez

2008 NMCA 002, 175 P.3d 942, 143 N.M. 274
CourtNew Mexico Court of Appeals
DecidedNovember 5, 2007
Docket26,174
StatusPublished
Cited by47 cases

This text of 2008 NMCA 002 (State v. Lopez) 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. Lopez, 2008 NMCA 002, 175 P.3d 942, 143 N.M. 274 (N.M. Ct. App. 2007).

Opinion

OPINION

KENNEDY, Judge.

{1} Defendant Ramona Lopez appeals from a judgment after a bench trial convicting her of possession of methamphetamine, contrary to NMSA 1978, § 30-31-23 (2005), possession of methamphetamine with intent to distribute, contrary to NMSA 1978, § 30-31-22 (2006), and tampering with evidence, contrary to NMSA 1978, § 30-22-5 (2003). Defendant appeals her convictions, arguing on appeal that: (1) the convictions for possession and possession with intent to distribute violate her right to be free from double jeopardy; (2) the evidence of possession of methamphetamine was insufficient because the evidence was exposed to cross-contamination at the State’s laboratory; (3) the affidavit for the search of her home did not provide probable cause, and therefore, all the evidence seized as a result of the warrant should be suppressed; and (4) her right to a speedy trial was violated.

{2} We agree with Defendant that her right to be free from double jeopardy was violated when she was convicted of both possession of methamphetamine and possession of methamphetamine with intent to distribute. We therefore vacate her conviction for simple possession of methamphetamine and remand for re-sentencing. Defendant’s remaining arguments lack merit; we affirm her convictions for possession with intent to distribute and tampering with evidence.

FACTS AND PROCEDURAL HISTORY

{3} The police in Roswell, New Mexico received complaints and information indicating that someone was trafficking narcotics from a private residence. In response, surveillance was set up on the residence. Several minutes after the surveillance had begun, two men drove up to the residence and approached the porch. One of the men, later identified as Ronald Abernathy, knocked on the door, the door opened, the hand inside touched Abernathy’s hand outside the door, and then the door closed. A couple of minutes later, the door opened again, and once again, the hands touched. The two men stayed on the porch for several minutes, and then left. The police stopped the men a few blocks from the residence for expired registration and a turn signal violation. During the traffic stop, a police officer, Sergeant Morris, asked the driver, Abernathy, if he could search him. Abernathy consented to the search, and a small amount of methamphetamine was found.

{4} Abernathy was taken to the police department and questioned. Officer Gonzales, one of the questioning officers, testified that Abernathy identified “Pill” as the person who handed him the methamphetamine at the residence. Officer Gonzales knew “Pill” to be the person who lived at the residence and to be Defendant’s nickname.

{5} Based on the surveillance and the information received from Abernathy, the police sought out and received a search warrant for the residence and for Defendant. Upon execution of the search warrant, entering the house with the aid of a battering ram that evening, Defendant was found in a bedroom. In that same bedroom, police found a small amount of methamphetamine along with a digital scale with residue, two spoons, baggies, plastic wrap, aluminum foil, and other trafficking-related drug paraphernalia. Defendant was detained. Before the police could take Defendant to the police station for questioning, Defendant complained of pain and asked to be taken to the hospital. Upon arrival at the hospital, Defendant, accompanied by Detective Preston, was observed tugging repeatedly at her shorts. She eventually produced a bag containing three smaller bags containing methamphetamine, which was seized from her by Detective Preston.

DISCUSSION

{6} We begin by addressing Defendant’s arguments regarding the search warrant because it is a threshold issue and its resolution leads us to whether the rest of the evidence was admissible.

Defendant Did Not Preserve Her Argument as to the Validity of the Search Warrant

{7} Defendant argues that the affidavit that provided probable cause to issue a search warrant was not valid. The State argues that this issue was not preserved for appellate review. Before Defendant can prevail on the merits of the argument that the search warrant was invalid, Defendant must demonstrate that the argument was preserved below. State v. De Jesus-Santibanez, 119 N.M. 578, 580, 893 P.2d 474, 476 (Ct.App.1995). We agree with the State that that issue was not preserved.

{8} In order to preserve an issue for appeal, “it must appear that a ruling or decision by the district court was fairly invoked.” Rule 12-216(A) NMRA. This Court has held that the rule “provides the lower court an opportunity to correct any mistake, ... provides the opposing party a fair opportunity to show why the court should rule in its favor, and ... creates a record from which this Court may make informed decisions.” State v. Joanna V., 2003-NMCA-100, ¶ 7, 134 N.M. 232, 75 P.3d 832, aff'd, 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783. The objection must be timely and must specifically apprise the district court of the claimed error, resulting in an intelligent ruling from the district court. State v. Jacobs, 2000-NMSC-026, ¶ 12, 129 N.M. 448, 10 P.3d 127.

{9} In this case, Defendant objected to the district court’s admission of the evidence based on the overbreadth of the search warrant. However, this objection was made by pretrial motion supported only by conclusory proposed findings of fact and conclusions of law submitted at the end of the bench trial. Defendant did not object to the admission of the evidence during trial. While Defendant brought up the issue of overbreadth during her cross-examination of the witnesses, we cannot say that this was enough to preserve the issue. The issue was neither argued in front of the district court, nor briefed by either party for review by the district court. Defendant does not argue that the issue was preserved for appeal, even after the State raised the problem in its answer brief.

{10} Also, much like the defendant in De Jesus-Santibanez, Defendant failed to “alert the district [court] of the need to ascertain the credibility” of what Defendant describes as unverified complaints of unknown persons. 119 N.M. at 580, 893 P.2d at 476. By not alerting the district court to determine the credibility of those complainants, “Defendant deprived the State of the opportunity to elicit facts that could have cured any seeming unreliability.” Id. at 580-81, 893 P.2d at 476-77. We hold that by not articulating the issue Defendant raises on appeal regarding the affidavit not providing probable cause for the search, Defendant waived her claim. Id. at 580, 893 P.2d at 476.

Defendant’s Convictions for Possession of Methamphetamine and Possession of Methamphetamine With Intent to Distribute Violate Her Right to be Free from Double Jeopardy

{11} Defendant argues that her convictions for possession and possession with intent to distribute violate the state and federal constitutional guarantees against double jeopardy. Specifically, Defendant argues that the convictions subjected her to multiple punishments for the same offense. We agree that they did.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 NMCA 002, 175 P.3d 942, 143 N.M. 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-nmctapp-2007.