State v. McWhorter

2005 NMCA 133, 124 P.3d 215, 138 N.M. 580
New Mexico Court of Appeals·Decided September 30, 2005·No. 24,852·Published·Cited by 22 cases

Opinion

OPINION

PICKARD, Judge.

{1} Defendant appeals her conviction of attempt to commit trafficking (by manufacturing). Defendant was convicted after entering a conditional guilty plea, reserving the right to appeal whether the general/speeific rule required the State to charge Defendant with possession of drug paraphernalia, NMSA 1978, § 30-31-25.KB) (2001), rather than attempt to commit trafficking (by manufacturing), NMSA 1978, § 30-31-20(A)(1) (1990). Defendant’s conviction resulted from her arrest for shoplifting medications containing ephedrine. Defendant intended to sell the medications so that the ephedrine could be used to manufacture methamphetamine. On appeal, Defendant argues that (1) she should have been charged with possession of drug paraphernalia, instead of attempt to commit trafficking (by manufacturing) because ephedrine meets the definition of drug paraphernalia as defined by NMSA 1978, 30-31-2(V) (2002), and (2) the general/specific rule is applicable under the facts of this case. We disagree and affirm.

{2} We note Defendant’s appeal raises no issue concerning whether her acts could amount to an attempt to manufacture controlled substances. See State v. Brenn, 2005 NMCA 121, ¶¶ 23-24, 138 N.M. 451, 121 P.3d 1050 (2005) (holding that possession of 5000 pseudoephedrine pills, some of which were unpackaged, together with other acts that would ultimately lead to the manufacture of methamphetamine, were sufficient to constitute an attempt). In addition, we would not reach the issue of whether Defendant’s acts constituted an attempt, because the issue was not reserved in the plea agreement. See State v. Hodge, 118 N.M. 410, 416-17, 882 P.2d 1, 7-8 (1994).

FACTS AND BACKGROUND

{3} Defendant was arrested for shoplifting eight boxes of non-prescription medications containing ephedrine. Defendant told officers that she would receive $100 if she brought back the medications to Deming, New Mexico. She also admitted that she was aware that the medications are used to manufacture methamphetamine. Defendant was charged with trafficking (by manufacturing). Defendant entered her conditional guilty plea to attempt to commit trafficking (by manufacturing). This appeal follows.

DISCUSSION

1. Defendant should not have been charged with possession of drug paraphernalia because ephedrine does not meet the definition of drug paraphernalia as defined by Section 30-31-2(V).

{4} Defendant argues that she should have been charged under Section 30-31-25.1(B), which prohibits possessing drug paraphernalia with the intent to deliver the paraphernalia knowing that it will be used to manufacture a controlled substance. Defendant argues that she should have been charged under Section 30-31-25.1(B) because ephedrine meets the definition of drug paraphernalia as defined by Section 30 — 31— 2(V). We disagree.

{5} The meaning of language used in a statute is a question of law that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). We give such language its ordinary and plain meaning unless the legislature indicates a different interpretation is necessary. State v. Hicks, 2002-NMCA-038, ¶11, 132 N.M. 68, 43 P.3d 1078. If the language of the statute is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation. State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990). We closely examine the overall structure of the statute that we are interpreting. State v. Calvert, 2003-NMCA-028, ¶ 15, 133 N.M. 281, 62 P.3d 372.

{6} Section 30-31-2(V) defines drug paraphernalia as follows:

“[D]rug paraphernalia” means all equipment, products and materials of any kind that are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or controlled substance analog in violation of the Controlled Substances Act.

Section 30 — 31—2(V)(1)—(12) then lists examples of paraphernalia including kits, devices, testing equipment, scales, balances, dilutants, adulterants, separation gins, sifters, blenders, bowls, containers, spoons, capsules, balloons, envelopes, objects designed for use in storing or concealing controlled substances, syringes, needles, pipes, masks, roach clips, and bongs. Section 30-31-2(V)(13) then reads as follows:

[I]n determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(a) statements by the owner or by anyone in control of the object concerning its use;

(b) the proximity of the object, in time and space, to a direct violation of the Controlled Substances Act ... or any other law relating to controlled substances or controlled substance analogs;

(e) the proximity of the object to controlled substances or controlled substance analogs;

(d) the existence of any residue of a controlled substance or controlled substance analog on the object;

(e) instructions, written or oral, provided with the object concerning its use;

(f) descriptive materials accompanying the object that explain or depict its use;

(g) the manner in which the object is displayed for sale; and

(h) expert testimony concerning its use[.]

For the convenience of the reader, we reproduce Section 30-31-2(V) in its entirety in an Appendix.

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State v. McWhorter, 2005 NMCA 133, 124 P.3d 215, 138 N.M. 580 (N.M. Ct. App. 2005).

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