State v. Mendoza

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,853

5 HENRY MENDOZA, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Denise Barela Shepherd, District Judge

9 Gary K. King, Attorney General 10 Yvonne M. Chicoine, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Law Office of Craig C. Kling 14 Craig C. Kling 15 San Diego, CA

16 for Appellant

17 MEMORANDUM OPINION 18 HANISEE, Judge.

1 {1} Defendant, Henry Mendoza, appeals from his convictions for trafficking 2 cocaine by distribution and conspiracy to commit trafficking cocaine by distribution. 3 He contends the district court erred by allowing the State to impeach him with 4 evidence of a prior conviction and by refusing to instruct the jury on the defense of 5 entrapment. He also contends there was insufficient evidence to support his 6 convictions. We affirm. 7 I. BACKGROUND 8 {2} On April 16, 2009, Defendant was involved in a controlled purchase of crack 9 cocaine. He was indicted on two counts: (1) trafficking (by distribution) (cocaine) and 10 (2) conspiracy to commit trafficking (by distribution) (cocaine). A jury trial began on 11 June 28, 2011. The State presented the following evidence at trial. 12 {3} Prior to encountering Defendant, police received a voicemail message on a tip 13 line stating, “If you call this number, ask for Flaco. He will sell you crack cocaine.” 14 Detective Ryan Brown telephoned Flaco and arranged to purchase two ounces of 15 crack cocaine. Detective Brown also arranged to meet Flaco at the General Mills 16 parking lot in Albuquerque at 3:30 p.m. that same day. Flaco stated he was going to 17 be driving a white car. Police arrived early to set up surveillance in the General Mills 18 parking lot. 19 {4} A white Buick arrived at the designated time. The vehicle had two

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1 occupants—a driver and a front-seat passenger. Detective Brown approached the 2 vehicle from the passenger side, “spoke to both individuals,” and ascertained “[t]hey 3 knew about the deal and they knew what I wanted.” The conversation “seemed to 4 kind of go through [the passenger,]” later identified to be Defendant. Detective 5 Brown explained that “whenever I would ask a question, [Defendant] would lean over 6 and talk to the driver, and I wouldn’t hear everything that was being said, but there 7 was some kind of dialogue there.” 8 {5} The driver and Defendant told Detective Brown that they did not have the crack 9 cocaine with them, but “they could go somewhere and get it.” They asked Detective 10 Brown to follow them in his vehicle to a different location. Detective Brown 11 considered this to be “quite suspicious” and was not comfortable following them 12 given his “fear of being robbed.” Detective Brown asked if he could have a “small 13 amount” of cocaine to “check it out” and “see if it’s good[.]” An agreement was 14 reached wherein Detective Brown would purchase $20 worth of crack cocaine. The 15 driver handed the cocaine to Defendant, who handed it to Detective Brown. Detective 16 Brown then paid $20 to Defendant, who handed it to the driver. Detective Brown 17 testified that in his law enforcement experience, he often encountered individuals 18 working together to sell narcotics. The prosecutor asked Detective Brown whether 19 this case was consistent with such instances and he responded, “Yes, nothing struck

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1 me as odd with this case.” 2 {6} After receiving the cocaine from the passenger, Detective Brown gave the 3 prearranged arrest signal, indicating a drug deal had taken place. At that point, 4 additional officers approached and placed the driver, Darrell Purvis, and the 5 passenger, Defendant, under arrest. Detective David Saladin testified regarding the 6 contents of post-arrest interviews he conducted with Defendant and Purvis. Defendant 7 admitted that he and Purvis were there to sell crack cocaine to Detective Brown. 8 Purvis maintained that he and Defendant did not have access to two ounces of cocaine, 9 but intended to “rip” Detective Brown. Detective Saladin testified that the term “rip” 10 meant Purvis and Defendant intended to rob Detective Brown. Both Defendant and 11 Purvis acknowledged using the name “Flaco.” Detective Saladin testified that 12 although he recorded his interviews with Defendant and Purvis, the recordings were 13 lost prior to trial when the police department transitioned to a new computer system. 14 At trial, Detective Saladin acknowledged his mistake in failing to copy and log the 15 interviews into evidence. 16 {7} After the State rested its case, Defendant made a motion in limine to prevent the 17 State from cross-examining him regarding his four prior convictions. The district 18 court ruled that the State could cross-examine Defendant regarding the fact that he 19 was a convicted felon based on a 2005 federal conviction, without identifying the

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1 crime for which he was convicted. The State conceded and the district court 2 disallowed cross-examination of Defendant regarding two additional prior felony 3 convictions, including one in 1997 in Arizona, because each was in excess of ten years 4 old. 5 {8} During his direct examination, Defendant admitted to having a felony 6 conviction from 2005. With regard to the events of April 16, 2009, Defendant 7 explained that he saw Purvis after applying for a job at Wal-Mart. Purvis told 8 Defendant he was going to pick up a friend at “the cereal place”—meaning the 9 General Mills factory. Defendant stated that he accepted a ride from Purvis in lieu of 10 taking the bus, planning to apply for a job at the General Mills factory. Defendant 11 insisted he “never knew [Purvis] was going to do anything.” Defendant denied 12 handling either the drugs or the money, and explained that Detective Brown “hand[ed] 13 the drugs to [Purvis], because [Purvis] has a long reach.” Defendant testified that he 14 “was going to leave” when Purvis “started talking about this transaction and all this 15 stuff” but “[i]t just happened so fast.” Defendant said that he did not know that Purvis 16 was selling crack cocaine because he “wasn’t paying attention” and he just “thought 17 they were shaking hands.” Defendant testified that he told the officers, “I ain’t 18 involved in this.” 19 {9} On cross-examination, the prosecutor questioned Defendant regarding the

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1 length of time he had lived in Albuquerque. Defendant answered, “I came here when 2 I was 19, so I’m 34 now.” Defendant agreed with the prosecutor that he had been in 3 Albuquerque for “[a]bout [fifteen] years,” which would mean that he arrived in 4 Albuquerque in 1996. At that point, the prosecutor notified the district court in a 5 bench conference that he wished to use the fact of Defendant’s previously excluded 6 1997 conviction to impeach Defendant’s credibility because Defendant was 7 incarcerated in Arizona during 1997 and 1998, and thus could not have then been in 8 Albuquerque. The district court allowed use of the date of Defendant’s conviction and 9 ensuing time in jail only “to identify the fact that he couldn’t have been in 10 Albuquerque during the times that he’s testified that he’s been here” without 11 identifying the nature of the conviction. 12 {10} The prosecutor then reviewed with Defendant his prior testimony regarding his 13 tenure as an Albuquerque resident, then asked him whether he was in fact incarcerated 14 in Arizona in 1997. Defendant said, “I think I was, yes, I was.” Following a second 15 bench conference, the following exchange took place between the prosecutor and 16 Defendant:

17 Q: [Defendant], how do you explain that you were in 18 Albuquerque and also incarcerated in Arizona at the 19 same time?

20 A: How?

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1 Q: How?

2 A: Well, I figure, by counting the days back—and 3 sometimes you forget, you know what I mean? You 4 try to leave the past way back. And I come to 5 another place where nobody knows nothing about 6 me so I can better myself so I won’t be in trouble. 7 That’s the only reason why I came here.

8 {11} After the defense rested its case, Defendant requested that the jury be instructed 9 on the defense of entrapment. The district court denied the requested instruction. The 10 jury found Defendant guilty of both counts. The district court imposed a sentence of 11 ten years imprisonment, suspending half. The sentence included a one-year habitual 12 offender enhancement. 13 II. DISCUSSION 14 {12} Defendant contends the district court erred by allowing the State to impeach 15 him on cross-examination with evidence of his 1997 conviction and by refusing to 16 instruct the jury on the defense of entrapment. Defendant also contends there was 17 insufficient evidence to support his convictions. We review each issue in turn. 18 A. Evidence of Prior Conviction 19 {13} Defendant first argues that the district court erred by allowing the State to 20 impeach him on cross-examination regarding the fact of his 1997 conviction and 21 ensuing incarceration. We review the district court’s decision for an abuse of 22 discretion. See State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d

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1 722. “We would find an abuse of discretion when the trial judge’s action was 2 obviously erroneous, arbitrary[,] and unwarranted. Abuse of discretion has also been 3 defined as being clearly against the logic and effect of the facts and circumstances 4 before the court.” Id. (internal quotation marks and citations omitted). 5 {14} The district court permitted the State to question Defendant regarding the 1997 6 conviction based upon its capacity to impeach Defendant’s testimony that he arrived 7 in Albuquerque in 1996. Defendant argues that this evidence should have been 8 excluded pursuant to Rule 11-609(B) NMRA (2008, prior to 2012 amendment) 9 because more than ten years had elapsed since Defendant was released from the 10 confinement imposed by the conviction. See id. (“Evidence of a conviction under this 11 rule is not admissible if a period of more than ten (10) years has elapsed since the date 12 of the conviction or of the release of the witness from the confinement imposed for 13 that conviction, whichever is the later date.”) 14 {15} The State concedes that it could not cross-examine Defendant about his 15 incarceration for the 1997 conviction under Rule 11-609, but contends that it could 16 impeach Defendant with the fact of the conviction under Rule 11-608(B) NMRA. 17 Prior to the 2012 amendment, Rule 11-608(B) stated, in pertinent part:

18 Specific instances of the conduct of a witness, for the 19 purpose of attacking or supporting a witness’s character for 20 truthfulness, other than conviction of crime as provided in 21 Rule 11-609, may not be proved by extrinsic evidence.

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1 They may, however, in the discretion of the court, if 2 probative of truthfulness or untruthfulness, be inquired into 3 on cross-examination of the witness . . . concerning the 4 witness’s character for truthfulness or untruthfulness[.]

5 (Emphasis added.) 6 {16} By its language, Rule 11-608(B) specifically excludes prior convictions from 7 its scope. The admissibility of prior convictions is governed by Rule 11-609, which 8 establishes a bright-line, ten-year limitation on the use of prior convictions. See Rule 9 11-609 comm. cmt. (noting the New Mexico rule differs from the federal rule in 10 providing an “absolute [ten]-year limit on the use of . . . prior conviction[s]”). 11 Consistent with Rules 11-608 and 11-609, we conclude that the district court erred in 12 allowing the State to cross-examine Defendant about his 1997 conviction. 13 {17} Yet our conclusion in this regard does not end our inquiry on appeal. As the 14 error is not of constitutional dimension, we review it for harmlessness. Violations of 15 court rules are assessed pursuant to a non-constitutional error analysis. See State v. 16 Guerra, 2012-NMSC-027, ¶ 19, 284 P.3d 1076 (“Non-constitutional error is 17 reversible only if the reviewing court is able to say, in the context of the specific 18 evidence presented at trial, that it is reasonably probable that the jury’s verdict would 19 have been different but for the error.” (alteration, internal quotation marks, and 20 citation omitted)). “In the final analysis, determining whether an error was harmless 21 requires reviewing the error itself and its role in the trial proceedings, and in light of

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1 those facts, making an educated inference about how that error was received by the 2 jury.” State v. Tollardo, 2012-NMSC-008, ¶ 57, 275 P.3d 110. Evidence of a 3 defendant’s guilt cannot be the “singular focus” of the analysis, but “may often be 4 relevant, even necessary, for a court to consider, since it will provide context for 5 understanding how the error arose and what role it may have played in the trial 6 proceedings[.]” Id. ¶ 43. 7 {18} In the present case, we conclude that there is no reasonable probability that the 8 jury’s verdict would have been different if the State had not been allowed to cross- 9 examine Defendant about his 1997 conviction. As an initial matter, we note that this 10 information was cumulative. While improperly admitted evidence that is cumulative 11 “is not ipso facto harmless beyond a reasonable doubt[,]” we conclude that it was 12 harmless here. See State v. Johnson, 2004-NMSC-029, ¶ 37, 136 N.M. 348, 98 P.3d 13 998. The jury was already aware that Defendant had a prior felony conviction based 14 on his testimony regarding his 2005 federal conviction, which he in part explained by 15 agreeing with his attorney that Defendant was “not telling this jury [he is] some 16 angel[.]” The fact that the jury learned about an additional conviction could not 17 reasonably have affected its decision. 18 {19} Additionally, we conclude that under the facts of this case evidence of 19 Defendant’s guilt was overwhelming and his explanation of the factual events was

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1 implausible. The jury heard testimony about Defendant’s direct involvement in the 2 controlled purchase from two detectives. Detective Brown testified that Defendant 3 “knew about the deal and . . . knew what I wanted.” And Defendant and Purvis held 4 private discussion during the immediate pendancy of the narcotic transaction, and both 5 handled the crack cocaine and currency used to purchase it during the sale. As well, 6 Detective Saladin testified that Defendant both acknowledged using the name “Flaco” 7 and admitted that he and Purvis were there to sell cocaine to Detective Brown. The 8 only evidence that Defendant presented to counter the State’s evidence was his own 9 testimony denying his involvement in the crimes. He professed to be a victim of 10 circumstance, merely present in the car to avoid taking the bus and wholly unaware 11 of what was happening around him. Given the nature of the transaction testified to, 12 and in light of the additional evidence suggesting that Defendant and Purvis intended 13 to rob Detective Brown, it was entirely reasonable for the jury to conclude that 14 Defendant was not there by accident. 15 {20} In State v. Duffy, our Supreme Court held that the district court did not abuse 16 its discretion in failing to declare a mistrial based on alleged prosecutorial misconduct 17 of questioning a witness in such a way as to elicit information about a prior conviction 18 of the defendant which would otherwise have been inadmissible. 1998-NMSC-014, 19 ¶ 51, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by Tollardo, 2012-

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1 NMSC-008. We noted that “any prejudice was mitigated by several factors” 2 including, among other things, that the jury did not learn why the defendant was in 3 prison and that the defendant’s criminal record was not emphasized by the witness or 4 the prosecution. Id. Similarly here, there are several factors mitigating any potential 5 prejudice to Defendant. Notably, the nature of Defendant’s prior conviction was 6 never revealed and the exchange between the prosecutor and Defendant relating to the 7 conviction was brief. As well, Defendant’s status as a separately convicted felon was 8 already properly known by the jury. In light of all of the evidence presented and 9 considering the proceedings as a whole, we conclude that the district court’s error was 10 harmless. 11 B. Entrapment Instruction 12 {21} Defendant next argues that the district court erred in failing to instruct the jury 13 on the defense of entrapment. Defendant tendered a written instruction to the district 14 court pursuant to Rule 5-608(B) NMRA and argued the instruction was warranted 15 because Detective Brown conducted the controlled purchase from the passenger side 16 of the vehicle instead of the driver’s side. The district court denied the requested 17 instruction pursuant to State v. Garcia, 1968-NMSC-119, 79 N.M. 367, 443 P.2d 860, 18 “as well as the totality of the evidence as presented in this case[.]” 19 {22} As an initial matter, the State maintains that Defendant failed to preserve this

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1 issue because the record proper does not contain Defendant’s proffered instruction. 2 Defendant counters that he in fact preserved the issue by providing the district court 3 a copy of his requested instruction and including the language of the proffered 4 instruction in his docketing statement and his reply brief. 5 {23} “In order to preserve an error for appeal, it is essential that the ground or 6 grounds of the objection or motion be made with sufficient specificity to alert the 7 mind of the trial court to the claimed error or errors, and that a ruling thereon then be 8 invoked.” State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 9 (internal quotation marks and citation omitted). We have allowed defendants to argue 10 on appeal that the trial court erred in refusing to give a requested instruction where the 11 defendants tendered a written instruction that included a misstatement of the law, as 12 long as the trial judge was aware of the specific language proposed. See State v. 13 Badoni, 2003-NMCA-009, ¶ 6, 133 N.M. 257, 62 P.3d 348 (collecting cases). 14 {24} In this case, it is abundantly clear that Defendant proffered a written instruction 15 on entrapment to the district court. Counsel and the district court engaged in an 16 extensive colloquy about whether the instruction was warranted, alerting the district 17 court to Defendant’s theory of the case and the relevant law. Under these 18 circumstances, we conclude Defendant adequately preserved this claim for our review 19 and we thus turn to its merits.

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1 {25} “The propriety of jury instructions given or denied is a mixed question of law 2 and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 3 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996.

4 When considering a defendant’s requested instructions, we view the 5 evidence in the light most favorable to the giving of the requested 6 instructions. A defendant is entitled to an instruction on his or her theory 7 of the case if evidence has been presented that is sufficient to allow 8 reasonable minds to differ as to all elements of the offense.

9 State v. Skippings, 2011-NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (alteration, 10 internal quotation marks, and citations omitted). 11 {26} Defendant requested that the jury be instructed on objective entrapment. In 12 State v. Vallejos, our Supreme Court explained that objective entrapment, also referred 13 to as entrapment as a matter of law, “has two distinct components, one factual and the 14 other normative.” 1997-NMSC-040, ¶ 10, 123 N.M. 739, 945 P.2d 957. “In the 15 factual inquiry, the jury examines whether the police engaged in conduct creating a 16 substantial risk that a person not predisposed to commit the crime would have been 17 induced to commit it.” Id. ¶ 12. “Under the normative inquiry, the trial court 18 carefully scrutinizes both the methods and purposes of police conduct to determine 19 whether police tactics offend our notions of fundamental fairness, or are so outrageous 20 that due process principles would absolutely bar the government from invoking 21 judicial processes to obtain a conviction[.]” Id. ¶ 16 (internal quotation marks and

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1 citations omitted). The normative inquiry encompasses “two broad categories of 2 [police] impropriety: unconscionable methods and illegitimate purposes.” Id. ¶ 17.

3 {27} In the present case, Defendant argued in the district court that he was entitled 4 to an entrapment instruction because Detective Brown acted with an illegitimate 5 purpose to generate an arrest in approaching the vehicle from the passenger side. 6 Defense counsel explained, “It’s the illegitimate purpose entrapment.” He did not 7 argue that he was entitled to an entrapment instruction under the factual prong. 8 {28} In denying Defendant’s requested instruction, the district court explained its 9 ruling as follows:

10 Pursuant to the holding in State v. Garcia, as well as the 11 totality of the evidence as presented in this case, the court 12 is going to deny [D]efendant’s requested instruction, UJI 13 14-5161, based on the holding in State v. Garcia that 14 entrapment is not available to [D]efendant as in a situation 15 where [D]efendant has denied [his involvement]; secondly, 16 the court does find that under the totality of the evidence 17 presented as a matter of law, the alleged conduct would not 18 be impermissible if it occurred.

19 While we disagree with the district court’s conclusion that Garcia controls the result 20 here, we agree with its conclusion that Defendant was not entitled to an entrapment 21 instruction as a matter of law. 22 {29} In Garcia, our Supreme Court held that the defendant was not entitled to an

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1 entrapment instruction where, among other things, the defendant offered an alibi at 2 trial and “claim[ed] that he could not have been in the vicinity of the place of the 3 alleged violation[—possession of marijuana].” 1968-NMSC-119, ¶ 9. The Garcia 4 Court explained that “it is held by a number of highly-respected courts that the 5 defense of entrapment is not available to a defendant who denies committing the 6 offense, because to invoke entrapment necessarily assumes the commission of at least 7 some of the elements of the offense.” Id. (citing cases). 8 {30} In State v. Tom, 2010-NMCA-062, ¶ 31, 148 N.M. 348, 236 P.3d 660, 9 overruled on other grounds by Tollardo, 2012-NMSC-008, we cited Garcia for the 10 proposition that “provided a defendant does not deny his presence entirely, but only 11 disputes the particulars of the crime, the entrapment defense is available.” Consistent 12 with this interpretation of Garcia, our Supreme Court held in Martinez v. State that 13 the defendant, who was charged with trafficking a controlled substance, was entitled 14 to an entrapment instruction where he admitted that the encounter at issue occurred 15 on the date the crime allegedly occurred and that he did transfer something to an 16 undercover agent, but denied knowing or believing that what he transferred was 17 heroin. Martinez, 1978-NMSC-051, ¶¶ 10-11, 91 N.M. 747, 580 P.2d 968. The 18 Martinez Court explained:

19 [W]here the defendant has admitted some elements of an 20 offense, although not all, and where the denial of the other

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1 elements is factually not repugnant to the defense of 2 entrapment, the trial court must issue an instruction on 3 entrapment. Whether or not the defenses are believable is 4 for the trier of fact to determine, inasmuch as alternative 5 defenses are allowed.

6 Id. ¶ 12. Similarly, in State v. Buendia, this Court concluded that a defendant who 7 was charged with unlawful dealing in federal coupons had made sufficient admissions 8 to warrant an entrapment instruction where he admitted giving money to an 9 undercover agent but denied receiving food stamps in return. 1996-NMCA-027, 10 ¶¶ 15-17, 121 N.M. 408, 912 P.2d 284. 11 {31} In the present case, Defendant’s own actions demonstrate his awareness of and 12 participation in the controlled purchase. As well, he does not deny that the controlled 13 purchase took place. He claims, however, that he was not involved in the transaction 14 and thought Detective Brown and Purvis were simply “shaking hands” when they 15 were exchanging drugs and money. The jury was instructed that it could find 16 Defendant guilty pursuant to an accessory theory even though Defendant did not do 17 the acts constituting the crime, if the State proved the following elements beyond a 18 reasonable doubt that: 19 1. Defendant intended that the crime be committed; 20 2. The crime was committed;

21 3. Defendant helped, encouraged or caused the crime to 22 be committed.

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1 Unlike the defendant in Garcia, Defendant admits that at least one of the elements of 2 the offense occurred—he admits that the crime was committed. The fact that he 3 disputes the particulars of the crime does not mean that he was not entitled to an 4 entrapment instruction. Under these circumstances, we conclude that the district court 5 erred in its reliance on Garcia. 6 {32} As with the district court’s error with regard to violation of Rule 11-608(B), 7 however, this finding does not end our inquiry. The district court also concluded that 8 the entrapment instruction was not warranted because “under the totality of the 9 evidence presented as a matter of law, the alleged [police] conduct would not [have 10 been] impermissible if it [had] occurred.” In Vallejos, our Supreme Court explained 11 that “the normative inquiry [of objective entrapment] is most appropriately conducted 12 by the court” although “the jury may resolve factual disputes where credibility is an 13 issue or where there is conflicting evidence pertaining to what events transpired.” 14 1997-NMSC-040, ¶ 20. We agree with the district court that even if the jury were to 15 accept Defendant’s version of the events, the conduct he described would not 16 constitute objective entrapment. 17 {33} The Vallejos Court recognized as well that an “[i]llegitimate purpose” could be 18 present when police have ensnared a defendant solely for the purpose of generating 19 criminal charges and without any motive to prevent further crime or protect the public

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1 at large.” Id. ¶ 19 (internal quotation marks and citation omitted). Here, there is no 2 evidence that Detective Brown approached the vehicle from the passenger side for the 3 sole purpose of generating criminal charges against the passenger. On the contrary, 4 the evidence reflects that Detective Brown believed both the driver and the passenger 5 were to be involved in the drug transaction and approached the vehicle from the 6 passenger side with a motive to prevent further crime and protect the public at large. 7 Detective Brown testified that he had often run across individuals working together 8 to sell narcotics and that “nothing struck [him] as odd with this case.” 9 {34} The Vallejos Court also cautioned that the defense of objective entrapment is 10 to be “used sparingly and reserved for only the most egregious circumstances[.]” Id. 11 ¶ 22 (internal quotation marks and citation omitted). The district court correctly 12 concluded that Defendant was not entitled to an entrapment instruction as a matter of 13 law because the police conduct was not sufficiently egregious to constitute illegitimate 14 purpose objective entrapment. We thus affirm the district court’s decision denying 15 the requested instruction.

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1 C. Sufficiency of the Evidence 2 {35} Defendant also argues that the evidence was insufficient to support his 3 convictions, relying on State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 4 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. “In reviewing 5 the sufficiency of the evidence, we must view the evidence in the light most favorable 6 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in 7 the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 8 128 N.M. 711, 998 P.2d 176. “The relevant question is whether, after viewing the 9 evidence in the light most favorable to the prosecution, any rational trier of fact could 10 have found the essential elements of the crime beyond a reasonable doubt.” Id. 11 (alteration, internal quotation marks, and citation omitted). 12 {36} With respect to both counts, the jury was instructed that it could find Defendant 13 guilty pursuant to an accessory theory even if Defendant did not do the acts 14 constituting the crime, if he intended that the crime be committed and helped, 15 encouraged, or caused the crime to be committed. At trial, Defendant denied ever 16 admitting that he was involved in the cocaine deal and emphasizes that the recording 17 of his alleged confession was lost prior to trial. He notes that Detective Brown’s 18 police report does not discuss his actions, but only the actions of Purvis. Defendant 19 contends that the jury was required to acquit him because “the weight of the evidence

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1 supports [his] version of events.” 2 {37} We disagree. “[T]he jury is free to reject [a d]efendant’s version of the facts, 3 [and] contrary evidence supporting acquittal does not provide a basis for reversal.” 4 Guerra, 2012-NMSC-027, ¶ 27, 284 P.3d 1076 (alteration, internal quotation marks, 5 and citation omitted). Viewing the evidence in the light most favorable to the State, 6 we conclude that a rational jury could find the essential elements of the crimes 7 charged beyond a reasonable doubt. Detectives Brown and Saladin testified that they 8 arranged a controlled purchase of cocaine on April 16, 2009, met the vehicle in which 9 Defendant was traveling at the assigned location, and purchased $20 worth of crack 10 cocaine from Defendant and the driver of the vehicle, who were visibly working 11 together to facilitate the sale. We conclude the evidence was sufficient to support 12 Defendant’s convictions. 13 III. CONCLUSION 14 {38} Finding no reversible error, we affirm Defendant’s convictions for trafficking 15 cocaine by distribution and conspiracy to commit trafficking cocaine by distribution. 16 {39} IT IS SO ORDERED.

17 _________________________________ 18 J. MILES HANISEE, Judge 19 WE CONCUR:

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1 ___________________________________ 2 RODERICK T. KENNEDY, Chief Judge

3 ___________________________________ 4 MICHAEL E. VIGIL, Judge