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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. 29,984
5 REINA VITE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Ralph D. Shamas, District Judge
9 Gary King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Jaqueline L. Cooper, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 GARCIA, Judge. 1 Defendant was convicted of trafficking both methamphetamine and heroin by
2 possession with intent to distribute, contrary to NMSA 1978, Section 30-31-20(A)(3)
3 (2006); possession of cocaine, contrary to NMSA 1978, Section 30-31-23(D) (2005)
4 (amended 2011); possession of marijuana, contrary to NMSA 1978, Section 30-31-
5 23(B)(1); and possession of drug paraphernalia, contrary to Section 30-31-25.1(A)
6 (2001). Defendant appeals her conviction on four grounds: (1) the district court
7 improperly denied her motion to suppress; (2) the district court’s evidentiary rulings
8 prevented her from presenting a defense; (3) her trial counsel was ineffective; and (4)
9 the evidence was insufficient to establish that she was the owner of drugs found in
10 common areas of her apartment and that she intended to distribute the drugs found in
11 her possession. We affirm the rulings of the district court.
12 BACKGROUND
13 On October 26, 2008, Defendant was stopped by police officers because the
14 officers believed the passenger in her motor vehicle, Defendant’s boyfriend
15 (Boyfriend), was trespassing at the apartment complex from which Defendant was
16 driving. During the motor vehicle stop, the officers determined that Defendant had
17 an active warrant for her arrest. While Defendant was handcuffed and standing
18 outside of her car, a bundle containing multiple individually wrapped packages of
19 drugs fell from her pants. Shortly thereafter, while Defendant was sitting in the patrol
2 1 car, another similar bundle fell from her pants. These bundles contained
2 methamphetamine and heroin. A subsequent consent was obtained to search
3 Defendant’s apartment and revealed cocaine, a digital scale, small baggies, firearms,
4 and drug paraphernalia.
5 DISCUSSION
6 I. Defendant’s Motion to Suppress
7 At the close of the State’s case, Defendant asserted that the traffic stop was
8 pretextual and moved to suppress the evidence found as a result of the stop. In her
9 argument to the district court, Defendant framed the issue as whether the evidence was
10 sufficient to support a lawful police stop on the basis of trespassing or instead was an
11 unlawful and “fabricated harassment of [Defendant’s] passenger[.]” The district court
12 denied the motion on the grounds that it was untimely and that the stop was not
13 pretextual. Defendant appeals the district court’s denial on the grounds that the
14 officers lacked reasonable suspicion due to a mistake of law. Defendant also asserts
15 that her counsel’s failure to adequately and timely file the motion to suppress
16 constituted ineffective assistance of counsel.
17 A. Preservation
18 The State contends that Defendant’s counsel only argued that the stop was
19 “pretextual” and did not sufficiently alert the district court to Defendant’s new
3 1 argument on appeal that there was no reasonable suspicion for the stop due to a
2 mistake of law. We agree that Defendant’s new argument was not adequately
3 preserved for the record.
4 The rules of preservation are construed to ensure that the district court had the
5 opportunity to rule on the issue and that there is an adequate record for appeal. See
6 Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a
7 ruling or decision by the district court was fairly invoked, but formal exceptions are
8 not required[.]”); State v. Reyes, 2002-NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d 948
9 (explaining that parties must object at trial in order to alert the district court of the
10 perceived error, to allow the court to correct any error, and to provide an adequate
11 record for appellate review), abrogated on other grounds by Allen v. LeMaster, 2012-
12 NMSC-001, ¶ 36, ___ N.M. ___, ___ P.3d ___.
13 Under the circumstances in this case, the State and the district court were
14 deprived of an opportunity to address the reasonableness of the stop. While the State
15 did discuss whether Boyfriend was actually trespassing, the record reflects that this
16 discussion was in response to Defendant’s specific argument that the traffic stop was
17 a pretext and initiated for the purpose of harassment. The State responded that the
18 stop was not a pretext for harassment because “[t]here was an occupant who had been
19 given a criminal trespass warning under authority of the manager of the apartment”
4 1 and the “officers had reason to stop the vehicle.” Defendant did not further challenge
2 the statement regarding the reason for stopping the vehicle. Defendant only claimed
3 that the underlying criminal trespass issue was fabricated as a pretext to harass
4 Defendant’s passenger.
5 The State was not provided with an opportunity to address Defendant’s new
6 argument regarding the sufficiency of the factual basis that supported the officers’
7 reason for stopping Defendant’s vehicle. As a result, the district court’s only ruling
8 on the matter was based upon Defendant’s argument that the stop was pretextual.
9 Because the question of reasonable suspicion for the stop based on mistake of law was
10 not preserved below and no ruling was requested from the district court on this issue,
11 we will not address this matter any further. See State v. Varela, 1999-NMSC-045, ¶
12 25, 128 N.M. 454, 993 P.2d 1280 (stating that in order to preserve an issue for appeal,
13 a defendant must make a timely objection that specifically apprises the trial court of
14 the nature of the claimed error and invokes an intelligent ruling thereon); State v.
15 Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986) (“The court had no
16 opportunity to consider the merits of, or to rule intelligently on, the argument
17 defendant now puts before us.”).
18 B. Ineffective Assistance of Counsel
19 Alternatively, Defendant argues that her counsel below was ineffective for
5 1 failing to timely and adequately raise a motion to suppress based upon reasonable
2 suspicion for the stop arising from a mistake of law. “The test for ineffective
3 assistance of counsel is whether defense counsel exercised the skill of a reasonably
4 competent attorney.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d
5 384. Establishing a prima facie case of ineffective assistance of counsel requires a
6 defendant to show that “ (1) counsel’s performance was deficient in that it fell below
7 an objective standard of reasonableness; and (2) that [the d]efendant suffered
8 prejudice in that there is a reasonable probability that, but for counsel’s unprofessional
9 errors, the result of the proceeding would have been different.” Id. (internal quotation
10 marks and citation omitted). We do not find ineffective assistance of counsel if there
11 is a plausible, rational trial strategy or tactic to explain counsel’s conduct. See State
12 v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289; State v. Roybal,
13 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61. “When an ineffective assistance
14 claim is first raised on direct appeal, we evaluate the facts that are part of the record.
15 If facts necessary to a full determination are not part of the record, an ineffective
16 assistance claim is more properly brought through a habeas corpus petition[.]” Roybal,
17 2002-NMSC-027, ¶ 19. Remand for an evidentiary hearing is the proper remedy only
18 when defendant makes a prima facie case of ineffective assistance. Id.
19 Defendant asserts that counsel’s performance fell below that of a reasonably
6 1 competent attorney because no reasonable trial strategy underlies the failure to timely
2 file the motion to suppress. This argument mischaracterizes the record at trial.
3 Defense counsel specifically explained its failure to timely file the motion to the
4 district court. Counsel believed that the written trespass notice would be produced at
5 trial and advanced the suppression argument only after he waited for the State to
6 complete the presentation of its case and recognized that no written notice was
7 introduced into evidence. As with other cases involving the tactical decisions of trial
8 counsel in other contexts, we do not wish to guess at how defense counsel chose to
9 deal with the available evidence to be presented regarding the trespass notice that was
10 issued to the Boyfriend. See Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198,
11 22 P.3d 666 (“On appeal, we will not second guess the trial strategy and tactics of the
12 defense counsel.” (internal quotation marks and citation omitted)); State v. Hester,
13 1999-NMSC-020, ¶ 11, 127 N.M. 218, 979 P.2d 729 (explaining that appellate courts
14 do not second guess trial strategies); State v. Sanchez, 120 N.M. 247, 254, 901 P.2d
15 178, 185 (1995) (stating that within the context of an ineffective assistance of counsel
16 claim, the appellate courts presume counsel is competent and will not second guess
17 the tactics or strategy of defense counsel). Defense counsel even told the district court
18 he was pleased that the State had chosen to present its evidence of the trespass notice
19 to the Boyfriend through testimony rather than actual written documentation. He
7 1 argued that this decision by the State weakened the State’s case because there was
2 “such little support for [this trespass notice] on [the officers’] sworn testimony.” A
3 plausible, rational trial strategy supports defense counsel’s decision not to file a
4 motion to suppress until after the State chose to introduce its trespass notice evidence
5 solely through officer testimony rather than written documentation. Therefore, we
6 cannot conclude that defense counsel’s decision was ineffective. The jury was
7 required to rely upon the credibility of the officers’ testimony because the State
8 neglected to submit the actual written evidence supporting this testimony. Such a trial
9 tactic would not be irrational or imprudent.
10 Defendant also asserts that “counsel failed to adequately raise [the suppression]
11 issue.” Defendant, however, has not explained what, other than timeliness, counsel
12 should have done differently. On the contrary, Defendant has argued that counsel
13 adequately raised and preserved Defendant’s motion to suppress. We will not
14 speculate as to why trial counsel did not raise the suppression issue differently.
15 Consequently, we will not review a claim that has not been adequately developed on
16 the record. Roybal, 2002-NMSC-027, ¶ 19 (stating that where facts necessary to a
17 full determination are not part of the record, an ineffective assistance claim is more
18 properly brought through a habeas corpus petition); see Headley v. Morgan Mgmt.
19 Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review
8 1 unclear arguments, or guess at what [a party’s] arguments might be.”).
2 For these reasons, we hold that Defendant has not established a prima facie case
3 of ineffective assistance of counsel. Defendant must pursue the issue, if at all, in a
4 collateral habeas corpus proceeding. See State v. Martinez, 1996-NMCA-109, ¶ 25,
5 122 N.M. 476, 927 P.2d 31 (“This Court has expressed its preference for habeas
6 corpus proceedings over remand when the record on appeal does not establish a prima
7 facie case of ineffective assistance of counsel.”); see also State v. Baca,
8 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that
9 provides a basis for remanding to the trial court for an evidentiary hearing on
10 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition
11 for writ of habeas corpus . . . .”).
12 II. Defendant’s Right to Present a Defense
13 Defendant next argues that reversal is required because the district court refused
14 to admit evidence that was required under her fundamental right to present a defense.
15 Defendant argued a theory of the case based upon her claim that the drugs found on
16 Defendant and the drugs found in her apartment belonged to Boyfriend. To support
17 her theory, Defendant attempted to enter into evidence documentation to establish
18 Boyfriend’s arrest for possession of methamphetamine and heroin that occurred two
19 months after Defendant’s arrest. Boyfriend invoked, and the district court recognized,
9 1 his Fifth Amendment right against self incrimination regarding this subsequent arrest.
2 The district court also refused to admit the criminal complaint and affidavit offered
3 by Defendant after Boyfriend completed his testimony at trial (the Complaint and
4 Affidavit). The Complaint and Affidavit dealt with Boyfriend’s charges of
5 methamphetamine and heroin possession that occurred two months after Defendant’s
6 arrest. We hold that the court did not err.
7 A. Standard of Review
8 “We review the admission of evidence under an abuse of discretion standard
9 and will not reverse in the absence of a clear abuse.” State v. Sarracino,
10 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “A district court abuses its
11 discretion when it misapplies or misapprehends the law.” State v. Pacheco,
12 2008-NMCA-131, ¶ 34, 145 N.M. 40, 193 P.3d 587. The majority of Defendant’s
13 arguments regarding this specific evidence were not preserved. We review
14 inadequately preserved evidentiary errors for fundamental or plain error. State v.
15 Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). Plain error is established
16 when it affects substantial rights. Id.
17 B. Boyfriend’s Subsequent Arrest for Methamphetamine Possession
18 Boyfriend invoked his Fifth Amendment right against self incrimination when
19 questioned by Defendant about his unrelated arrest for drug possession that occurred
10 1 two months after Defendant’s arrest. Initially, Defendant requested for the record that
2 Boyfriend clearly invoke his Fifth Amendment right against self incrimination
3 regarding this possession charge. The district court allowed Defendant to continue
4 questioning Boyfriend in order to make her record on this issue. Boyfriend’s
5 testimony continued after he clearly indicated that he was invoking his Fifth
6 Amendment right as to the question asked by Defendant. After Boyfriend’s testimony
7 was completed, Defendant then asked the district court to admit the Complaint and
8 Affidavit into evidence as an exhibit.
9 On appeal, Defendant claims that, (1) the district court improperly prevented
10 Boyfriend from testifying about his subsequent arrest based upon an invocation of his
11 Fifth Amendment right against self incrimination; and (2) the district court erred in
12 refusing to admit the Complaint and Affidavit into evidence. Defendant argued that
13 this evidence was relevant and admissible because it tends to exculpate her. We
14 conclude that Defendant did not preserve for review her argument regarding
15 Boyfriend’s Fifth Amendment right, and that the district court did not abuse its
16 discretion in excluding the Complaint and Affidavit.
17 1. Fifth Amendment and Relevancy Issues
18 The State initially attempted to preclude any inquiry into Boyfriend’s
19 subsequent arrest by objecting on the grounds of relevance. Relevant evidence
11 1 “means evidence having any tendency to make the existence of any fact that is of
2 consequence to the determination of the action more probable or less probable than
3 it would be without the evidence.” Rule 11-401 NMRA. The district court did not
4 grant the State’s relevancy objection but required Defendant to lay a further
5 foundation regarding Boyfriend’s possession of methamphetamine. No further ruling
6 was issued regarding the relevancy of this testimony and Boyfriend invoked his Fifth
7 Amendment right to remain silent in response to Defendant’s additional questions
8 about his previous possession of methamphetamine.
9 Despite the lack of any ruling by the district court, Defendant has made
10 numerous arguments regarding the relevancy of Boyfriend’s subsequent arrest for
11 possession of methamphetamine on appeal. Because the district court did not rule that
12 Boyfriend’s subsequent arrest was irrelevant, and because the court allowed
13 Defendant to continue with her questions regarding this subsequent arrest, we need
14 not address the relevancy issue further. See Rule 12-216(A) (in order to preserve a
15 question for review it must appear that a ruling by the district court was fairly invoked
16 by the appellant). In this case, no error or ruling was made by the district court that
17 requires a correction. See Gushwa v. Hunt, 2008-NMSC-064, ¶ 47, 145 N.M. 286,
18 197 P.3d 1(explaining the purposes of the preservation rule: to allow the district court
19 an opportunity to correct any errors and to create a sufficient record for an appellate
12 1 court to make informed decisions).
2 Defendant next claims that the district court denied her attempt to require
3 Boyfriend to testify about his arrest for possession of methamphetamine despite his
4 invocation of the Fifth Amendment right to remain silent. Defendant appears to argue
5 that the district court somehow limited her further inquiry into Boyfriend’s arrest
6 based upon the erroneous belief that Boyfriend’s invocation of his Fifth Amendment
7 right was proper. Again the record reflects otherwise.
8 Defendant did not request that Boyfriend be required to answer questions due
9 to an unsuccessful or improper attempt to invoke his Fifth Amendment right; she only
10 asked for “[a] very clear implication” that Boyfriend was in fact invoking his Fifth
11 Amendment right. Once this clarification was provided, Defendant continued with
12 her questions until she concluded with the witness. Again, no such objection or Fifth
13 Amendment ruling was ever requested or preserved by the Defendant, and the district
14 court made no ruling regarding the propriety of Boyfriend’s invocation of this Fifth
15 Amendment right. As a result, we need not address this issue any further. See Rule
16 12-216(A); see also Gushwa, 2008-NMSC-064, ¶ 47.
17 2. Impeachment Through Admission of the Complaint and Affidavit
18 After Boyfriend denied both use and possession of methamphetamine, defense
19 counsel attempted to impeach his testimony with questions regarding his subsequent
13 1 arrest for methamphetamine possession. When Boyfriend invoked his Fifth
2 Amendment right to remain silent, Defendant attempted to impeach his testimony by
3 requesting the admission of a certified copy of the Complaint and Affidavit. The
4 Affidavit allegedly contained incriminating statements made by Boyfriend during his
5 subsequent arrest. The State objected on the basis of hearsay, and the district court
6 refused to admit the Complaint or Affidavit as exhibits.
7 Initially, Defendant offered the Complaint and Affidavit–and Boyfriend’s
8 alleged statements contained in the Affidavit—as an admission of a party opponent
9 under Rule 11-801(D)(2) NMRA. The Affidavit was a sworn statement made by
10 Officer Rightsell and only included alleged statements Officer Rightsell attributed to
11 Boyfriend. As a result, Defendant now argues on appeal that, (1) the statements are
12 not hearsay under Rule 11-801 because they were not offered for the truth of the
13 matter asserted but were offered for another reason; (2) the public record or business
14 record exceptions under Rule 11-803(F) and (H) NMRA should have allowed their
15 admission; (3) the statements were against Boyfriend’s penal interest and should have
16 been admitted under Rule 11-804 NMRA; and (4) the statements should have been
17 admitted under the residual exception to the hearsay rule set forth in Rule 11-807
18 NMRA. These four additional hearsay exceptions were not raised or preserved in the
19 district court. To preserve an issue for appeal, Defendant must make a timely
14 1 objection that specifically apprises the trial court of the nature of the claimed error and
2 invokes an intelligent ruling thereon. See Lucero, 104 N.M. at 590, 725 P.2d at 269.
3 In her briefing, Defendant either admits or fails to indicate how these four additional
4 issues were preserved for our review. See In re Norwest Bank of N.M., N.A.,
5 2003-NMCA-128, ¶ 30, 134 N.M. 516, 80 P.3d 98 (stating that this Court will not
6 search the record for evidence of preservation). As a result, we will not address the
7 merits of these four new arguments that were not preserved below. See Rule
8 12-216(A); see also Gushwa, 2008-NMSC-064, ¶ 47.
9 The only hearsay argument preserved by Defendant regarding the admission of
10 the Complaint and Affidavit relied upon the hearsay exception that allows for the
11 admission of a party opponent as set forth in Rule 11-801(D)(2). It is undisputed that
12 Boyfriend is only an adversarial witness in Defendant’s case and, despite Defendant’s
13 various assertions regarding their relationship, he is not a party in these proceedings.
14 Defendant has failed to provide any authority to support her argument that the State’s
15 witness against her qualifies as a party opponent under Rule 11-801(D)(2). See State
16 v. Garcia, 2005-NMCA-065, ¶ 7, 137 N.M. 583, 113 P.3d 406 (recognizing that an
17 appellate court will not consider an issue if no authority is cited in support of the
18 argument). Without authority, we are not inclined to consider the merit of this
19 argument further. As a result, the district court did not abuse its discretion when it
15 1 rejected Defendant’s Rule 11-801(D)(2) argument and refused to admit the Complaint
2 and Affidavit as exhibits.
3 3. Fundamental and Plain Error
4 Defendant also argues that this Court may review the district court’s failure to
5 admit the Complaint and Affidavit even if it was not adequately preserved because it
6 constituted either plain or fundamental error. See Rule 12-213(A)(4) NMRA
7 (requiring that appellant’s brief-in-chief set forth their arguments “with respect to each
8 issue presented . . . and a statement explaining how the issue was preserved in the
9 court below, with citations to authorities, record proper, transcript of proceedings or
10 exhibits relied on”). This Court has previously held that plain error is to be used
11 sparingly. State v. Torres, 2005-NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877. We
12 apply the rule only in evidentiary matters and “only if we have grave doubts about the
13 validity of the verdict, due to an error that infects the fairness or integrity of the
14 judicial proceeding.” Id. (internal quotation marks and citation omitted). In
15 determining whether there has been plain error, “we must examine the alleged errors
16 in the context of the testimony as a whole.” State v. Barraza, 110 N.M. 45, 49, 791
17 P.2d 799, 803 (Ct. App. 1990).
18 The first step in a plain error analysis is to identify the evidentiary error made
19 by the district court. Defendant initially proposed to use Boyfriend’s arrest to
16 1 impeach his testimony that he had never used or possessed methamphetamine.
2 “However, ‘[s]pecific instances of the conduct of a witness, for the purpose of
3 attacking or supporting the witness’s credibility, other than conviction of crime as
4 provided in Rule 11-609 [NMRA 1999], may not be proved by extrinsic evidence.’”
5 Lucero, 1999-NMCA-102, ¶ 38 (alterations in original) (quoting Rule 11-608(B)
6 NMRA). Here, Defendant recognized that the charges against Boyfriend did not
7 result in a conviction and had been dismissed, so Rule 11-608(B) would apply to
8 exclude the evidence of Boyfriend’s conduct as it was depicted in the Complaint and
9 Affidavit. See Lucero, 1999-NMCA-102, ¶ 39. Even if Defendant had overcome the
10 State’s hearsay objection, the State would have been able to ask the district court to
11 exclude this evidence under Rule 11-608(B). As a result, Defendant has failed to meet
12 this first requirement in her plain error analysis.
13 Even assuming that the district court was in error, after looking at the trial as
14 a whole, we cannot conclude that Boyfriend’s invocation of his Fifth Amendment
15 right and the district court’s exclusion of the Complaint and Affidavit raised “grave
16 doubts about the validity of the verdict.” State v. Dylan J., 2009-NMCA-027, ¶ 19,
17 145 N.M. 719, 204 P.3d 44. At best, the evidence of Boyfriend’s drug use and
18 possession would implicate him as a participant and a possible co-defendant.
19 Boyfriend’s subsequent arrest two months after Defendant’s arrest does not establish
17 1 that the drugs found on Defendant and inside her apartment two months earlier
2 belonged to Boyfriend. This evidence would not exonerate Defendant from her
3 participation in the activity that led to the charges against her. Under the facts
4 presented in this case, Boyfriend’s involvement in drug activity is not the type of
5 evidence that would cast grave doubts about Defendant’s involvement in the same
6 activity. As a result, the fundamental fairness and integrity of these judicial
7 proceedings would not be violated by excluding evidence of Boyfriend’s subsequent
8 arrest for possession of methamphetamine. The district court did not commit
9 fundamental or plain error by allowing Boyfriend to invoke his Fifth Amendment
10 right or by excluding the extrinsic evidence of his subsequent arrest.
11 4. Presentment of a Complete Defense
12 We recognize that a criminal defendant has a fundamental right to present a
13 defense. State v. Rosales, 2004-NMSC-022, ¶ 7, 136 N.M. 25, 94 P.3d 768.
14 “However, that right has never been absolute or unlimited.” Id. At times, “a
15 defendant’s interest in presenting evidence may . . . bow to accommodate other
16 legitimate interests in the criminal trial process.” Id. (internal quotation marks and
17 citation omitted). State rules of evidence, for example, “do not abridge an accused’s
18 right to present a defense so long as they are not arbitrary or disproportionate to the
19 purposes they are designed to serve.” Id. (internal quotation marks and citation
18 1 omitted).
2 We hold that the district court’s decision to bar the admission of certain limited
3 evidence did not prevent Defendant from presenting a complete defense, as she is
4 entitled to do under the United States Constitution. Although the district court
5 excluded the evidence of Boyfriend’s subsequent arrest for methamphetamine
6 possession, it did allow Defendant to ask Boyfriend about his involvement in the
7 events on the night of Defendant’s arrest, his access to her home, his drug use, his
8 drug paraphernalia, and his drug related activities. Defendant was also able to explore
9 her theory that Boyfriend was in fact the culprit and present it to the jury through her
10 own testimony. She was also able to impeach Boyfriend’s credibility by establishing
11 that he initially lied to the police about his relationship with Defendant and his use of
12 heroin. Under the circumstances in this case, the exclusion of Boyfriend’s subsequent
13 arrest did not materially infringe upon Defendant’s constitutional right to present a
14 defense. Instead, it properly limited one slightly relevant piece of evidence that was
15 excluded in accordance with the New Mexico Rules of Evidence. We hold that the
16 district court did not violate Defendant’s fundamental right to present a defense.
17 C. Ineffective Assistance of Counsel
18 Defendant also asserts on appeal that defense counsel was ineffective for failing
19 to argue the correct evidentiary standards necessary to admit evidence of Boyfriend’s
19 1 subsequent arrest set forth in the Complaint and Affidavit. For the reasons discussed
2 above, we found no error in the district court’s exclusion of any evidence and no
3 fundamental or plain error in matters that were not preserved in the record. As a
4 result, we cannot conclude that Defendant “suffered prejudice in that there is a
5 reasonable probability that, but for counsel’s unprofessional errors, the result of the
6 proceeding would have been different.” Aker, 2005-NMCA-063, ¶ 34 (internal
7 quotation marks and citation omitted). Any further concerns regarding ineffective
8 assistance of counsel must be raised separately in a habeas corpus proceeding. See
9 Roybal, 2002-NMSC-027, ¶ 19 (explaining that where a defendant fails to
10 demonstrate a prima facie case of ineffective assistance based on the record below, the
11 claim is more properly brought through a habeas corpus petition).
12 III. Sufficiency of the Evidence
13 Defendant’s final argument attacks the sufficiency of the evidence for
14 possession of drugs and paraphernalia found in the common areas of the apartment
15 and for trafficking. In reviewing the sufficiency of evidence supporting a conviction,
16 we review the evidence in the light most favorable to the prevailing party. State v.
17 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “[S]ufficient evidence to
18 uphold a conviction exists where substantial evidence of either a direct or
19 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
20 1 with respect to every element essential to [a] conviction.” State v. Salazar, 1997-
2 NMSC-044, ¶ 44, 123 N.M. 778, 945 P.2d 996 (internal quotation marks and citation
3 omitted). “Substantial evidence is relevant evidence that a reasonable mind might
4 accept as adequate to support a conclusion.” Rojo, 1999-NMSC-001, ¶ 19. On
5 appeal, we do not weigh the evidence or substitute our judgment for that of the fact
6 finder so long as the evidence is sufficient to support the verdict. Akers, 2010-
7 NMCA-103, ¶ 32.
8 A. Possession
9 Defendant contends that the evidence was insufficient to establish the element
10 of possession with regard to the drugs located in her apartment. In order to convict
11 Defendant of possession of a controlled substance, the jury was required to find that
12 Defendant had a controlled substance in her possession, knowing it to be a substance
13 that was regulated or prohibited by law. Defendant claims that the State was required
14 to prove “constructive possession” over the drugs and paraphernalia found in her
15 apartment because she shared the apartment with Boyfriend. Proof of constructive
16 possession can be established by evidence of a defendant’s conduct and actions, and
17 by circumstantial evidence that connects a defendant to the crime. State v. Brietag,
18 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989).
19 Viewing the evidence in the light most favorable to the district court’s decision,
21 1 we conclude that the evidence was sufficient to establish Defendant’s possession of
2 the drugs found in her apartment. Even though Defendant claimed to share the
3 apartment with Boyfriend, the record also supports the opposite. The record indicates
4 that Boyfriend did not spend much time in Defendant’s apartment. Boyfriend also
5 testified at trial that he did not live at the apartment and that it was Defendant’s
6 apartment. Boyfriend also testified that he did not use drugs in Defendant’s
7 apartment. The inferences from the evidence support the conclusion that the
8 apartment was rented by Defendant and she had exclusive control over her belongings
9 inside of the apartment. We conclude the evidence was sufficient to support
10 Defendant’s conviction for possession of the items found in the apartment.
11 II. Trafficking
12 Defendant also contends that there was no evidence establishing intent to
13 distribute because Defendant explained that the drugs were only in her possession
14 temporarily. To convict Defendant of trafficking by possession with intent to
15 distribute a controlled substance, the jury was required to find that Defendant had a
16 controlled substance in her possession, knowing that it was a drug that was regulated
17 or prohibited by law, and that she intended to transfer it to another. “Intent may be
18 proved by inference from the surrounding facts and circumstances, such as the
19 quantity and manner of packaging of the controlled substance.” State v. Muniz, 110
22 1 N.M. 799, 800, 800 P.2d 734, 735 (Ct. App. 1990) (citation omitted).
2 Viewing the evidence in the light most favorable to the district court’s decision
3 in favor of the State, the evidence was sufficient to establish intent to distribute. Some
4 of the drugs found on Defendant’s person when she was arrested were individually
5 packaged. The record also reflects that police officers discovered a digital scale inside
6 a box of baggies while searching Defendant’s apartment. See State v. Zamora, 2005-
7 NMCA-039, ¶ 24, 137 N.M. 301, 110 P.3d 517 (explaining that amount, packaging,
8 and scales is sufficient to establish intent to distribute). Near the box of baggies, in
9 the same drawer, was a torn or cut glove with only one finger remaining.
10 Additionally, Defendant admitted on cross-examination that she intended to give the
11 drugs to Boyfriend. Accordingly, the evidence is sufficient to support Defendant’s
12 conviction for trafficking by possession with intent to distribute.
13 CONCLUSION
14 For the foregoing reasons we affirm Defendant’s convictions.
15 IT IS SO ORDERED.
16 ___________________________________ 17 TIMOTHY L. GARCIA, Judge
23 1 WE CONCUR:
2 _________________________________ 3 JONATHAN B. SUTIN, Judge
4 _________________________________ 5 CYNTHIA A. FRY, Judge