State v. Swallows

• Court: New Mexico Court of Appeals
• Decided: February 8, 2010
• Docket: 29,676
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,676

10 JOHN DAVID SWALLOWS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY 13 Eugenio S. Mathis, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Liane E. Kerr 18 Albuquerque, NM

19 for Appellant

20 MEMORANDUM OPINION

21 WECHSLER, Judge.

22 Defendant appeals his convictions for possession of methamphetamine, 1 possession of drug paraphernalia, and open container violation. We proposed to

2 affirm Defendant’s convictions in a calendar notice, and Defendant has responded to

3 that notice with a memorandum in opposition. We have duly considered Defendant’s

4 arguments, but we are unpersuaded by them. We therefore affirm.

5 Sufficiency of Evidence

6 Defendant continues to claim that the trace amount of drug residue found in the

7 truck was insufficient to support his conviction for possession of drugs or drug

8 paraphernalia. Defendant argues that, because his statements to the officer were

9 suppressed and not considered by the jury, the jury could only rely on the trace

10 amount found on the drug-related items taken from the truck. [MIO 2] Without

11 Defendant’s admissions to the officer, Defendant argues that the jury could not find

12 that Defendant had knowledge of the trace amount of methamphetamine contained in

13 the items.

14 In support of his argument, Defendant cites to State v. Reed, 1998-NMSC-030,

15 125 N.M. 552, 964 P.2d 113, a case in which the Supreme Court reversed a drug

16 possession conviction based on the fact that the defendant was only found to possess

17 a wrapper containing a trace amount of cocaine that was not immediately apparent to

18 the human eye. Id. ¶¶ 15-18. The Court in Reed explained that, because there was no

19 corroborating evidence to show that the defendant knew the wrapper contained a trace

2 1 amount of residue or that the residue was cocaine, the conviction for possession could

2 not stand. Id. In this case, unlike the situation in Reed, the drug paraphernalia found

3 by the officer was corroborating evidence that would support a finding that Defendant

4 had the requisite knowledge to support his conviction for possession. See id.; State

5 v. Wood, 117 N.M. 682, 686, 875 P.2d 1113, 1117 (Ct. App. 1994) (explaining that

6 knowledge may be inferred from the circumstances and holding that a trace amount

7 of cocaine and drug paraphernalia on the defendant’s person was sufficient to show

8 knowledge). Viewing the evidence in the light most favorable to the jury’s verdict

9 and indulging all reasonable inferences in favor of the verdict, the

10 evidence in this case was sufficient to support Defendant’s conviction for possession

11 of methamphetamine.

12 Scope of Search

13 The officer was granted permission to search the cab of the truck from both

14 Defendant and Defendant’s employer. Defendant claims that he understood that the

15 search would be cursory and limited to a “quick peek” for weapons. The search took

16 approximately twenty-seven minutes, which Defendant claims went beyond a “quick

17 peek” and exceeded the scope of the consent that was granted. [DS 4; MIO 5] There

18 is nothing in the record to indicate that Defendant raised his claim regarding a “quick

19 peek” with the district court. The primary purposes for the preservation rule are: (1)

3 1 to specifically alert the district court to a claim of error so that any mistake can be

2 corrected at that time, (2) to allow the opposing party a fair opportunity to respond to

3 the claim of error and to show why the court should rule against that claim, and (3) to

4 create a record sufficient to allow this Court to make an informed decision regarding

5 the contested issue. See State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175

6 P.3d 942 (filed 2007). When an argument is not properly preserved in the district

7 court, we will not address it on appeal. See State v. Maez, 2009-NMCA-108, ¶ 15,

8 147 N.M. 91, 217 P.3d 104, cert. denied, (No. 31,857 Aug. 18, 2009).

9 For the reasons discussed above and in our calendar notice, we affirm

10 Defendant’s convictions.

11 IT IS SO ORDERED.

12 ______________________________ 13 JAMES J. WECHSLER, Judge

14 WE CONCUR:

15 __________________________________ 16 MICHAEL D. BUSTAMANTE, Judge

17 __________________________________ 18 CELIA FOY CASTILLO, Judge