July 10, 2013 – State v. Donnie Silvas, No. 30,917

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: 	July 10, 2013
NO. 30,917
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DONNIE SILVAS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
Daniel Viramontes, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
ZAMORA, Judge.
{1} 	Defendant appeals his convictions for trafficking by possession with intent to
distribute methamphetamine and for conspiracy to commit trafficking, the result of a
surveillance of his residence during a drug investigation in Lordsburg, New Mexico.
Defendant argues that evidence should have been suppressed because it was seized
through a pretextual stop of a car in which his co-conspirator was a passenger, and
through a warrantless search of his motel room. 	He also appeals the denial of a
motion for a new trial and asserts that his conspiracy conviction should be reversed.
We affirm in part and reverse in part.
BACKGROUND
{2} 	We briefly set out the facts of the case and a time line of events to assist in our
analysis below. 	On March 14, 2008, as part of a narcotics task force operation in
Hidalgo County, New Mexico, local officers and agents were monitoring suspected
drug activity at the American Motor Inn in Lordsburg. Suspecting a drug deal had
taken place in the hotel room of Defendant, and under operational orders to stop every
car emerging from the hotel, authorities followed Patricia Ortega as she left the hotel
parking lot as a passenger in a white car. 	Lordsburg Police Sergeant Plowman,
assisting in the investigation, looked for probable cause to pull the car over, eventually

making a traffic stop for failure to use a turn signal. Ortega and her daughter, also a
passenger, got out of the car and went to her motel room at the nearby Budget Motel.
The driver of the car was issued a warning, and no evidence was seized from his car.
However, Sergeant Plowman remained in contact with Ortega as authorities sought
to obtain a search warrant for her motel room. 	Before the search warrant was
obtained, Ortega emerged from her room with 1.7 grams of methamphetamine and
told police that she had bought it earlier in the day from Defendant in his room at the
American Motor Inn.
{3} 	Later that day, again while waiting for a warrant but before one was issued, law
enforcement agents forced their way into Defendant’s hotel room while he was gone.
No evidence was seized during the search of the hotel room. Defendant was arrested
three days later and charged with trafficking a controlled substance and with
conspiracy in connection with the March 14 sale of narcotics to Ortega.
{4} 	After a two-day jury trial, Defendant was convicted on both counts. He brought
this appeal.
DISCUSSION
{5} 	Defendant raises four issues on appeal: (1) he contends that a pretextual stop
of the car in which Ortega was a passenger produced evidence that should have been
suppressed; (2) he argues for another order of suppression because of a warrantless
search of his hotel room; (3) he challenges the district court’s denial of a motion for

a new trial based on the State’s failure to disclose an audio recording of Defendant’s
post-arrest interview with police; and (4) he contends that Wharton’s Rule bars a
conspiracy conviction under this set of circumstances. We address each issue in order.
I. 	Pretextual Stop
{6} 	Defendant first argues that the traffic stop of the car in which Ortega was a
passenger was pretextual and that any evidence recovered in connection with that
traffic stop should be suppressed. See N.M. Const. art. II, § 10 (“The people shall be
secure in their persons, papers, homes[,] and effects, from unreasonable searches and
seizures, and no warrant to search any place, or seize any person or thing, shall issue
without . . . a written showing of probable cause[.]”); State v. Ochoa, 2009-NMCA-
002, ¶ 25, 146 N.M. 32, 206 P.3d 143 (defining a pretextual stop as “a detention
supportable by reasonable suspicion or probable cause to believe that a traffic offense
has occurred, but [also] is executed as a pretense to pursue a ‘hunch,’ a different more
serious investigative agenda for which there is no reasonable suspicion or probable
cause”). Defendant contends that Sergeant Plowman was under orders to assist in the
investigation of Defendant’s alleged drug operation by stopping the drivers of cars
seen coming out of the American Motor Inn parking lot and committing a traffic
violation. 	The State counters by challenging Defendant’s standing to contest the
constitutionality of a traffic stop at which he was not present. The State also asserts

that even if Defendant was able to establish standing, evidence supports the district
court’s finding that the traffic stop was constitutionally sound.
{7} 	Defendant filed a motion to suppress all physical evidence and statements
obtained as a result of the pretextual stop, citing both the New Mexico Constitution
and the Fourth Amendment of the United States Constitution. 	The district court
denied the motion to suppress, concluding that the stop was not pretextual.
A. 	Standard of Review
{8} 	“A district court’s denial of a motion to suppress will not be reversed if it is
supported by substantial evidence, the only exception being if the ruling was
incorrectly applied to the facts.” State v. Van Dang, 2005-NMSC-033, ¶ 6, 138 N.M.
408, 120 P.3d 830. The district court’s findings of fact are reviewed for substantial
evidence, and the court’s application of the law to those facts is reviewed de novo.
State v. Soto, 2001-NMCA-098, ¶ 6, 131 N.M. 299, 35 P.3d 304.
B. 	Standing
{9} 	We first address the threshold issue raised by the State: whether Defendant has
standing to ask the court to suppress evidence related to a pretextual stop of a car in
which he was not riding and did not have a possessory interest. “Standing is . . . a
substantive doctrine that identifies those who may assert rights against unlawful
searches and seizures.” State v. Porras-Fuerte, 119 N.M. 180, 183, 889 P.2d 215, 218
(Ct. App. 1994). Whether a party has standing to bring forth a claim is a question of

law that we review de novo. Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶
6, 279 P.3d 772.
{10} 	We have previously stated that “standing is a fact-based issue on which [a
d]efendant must be given the opportunity to present evidence to the [district] court.”
State v. Leyba, 1997-NMCA-023, ¶ 6, 123 N.M. 159, 935 P.2d 1171. At the district
court’s first hearing on Defendant’s motion to suppress evidence, the State asserted
that Defendant lacked standing to contest the seizure of evidence from Ortega after the
stop of the car in which she had been a passenger. 	The district court found that
Defendant had standing to contest the pretextual stop because there was a “nexus”
between the stop of the car in which Ortega was a passenger and the arrest of
Defendant.
{11} 	In order to establish standing, a defendant “must demonstrate that he had a
subjective expectation of privacy that society will recognize as reasonable.” 	Van
Dang, 2005-NMSC-033, ¶ 7. 	“Generally, one who owns, controls, or lawfully
possesses property has a legitimate expectation of privacy.” 	Id. 	(“[H]olding that
where occupants of a car asserted neither a property nor a possessory interest in the
automobile, nor an interest in the property seized, they were not entitled to
suppression of seized items in their subsequent robbery prosecution.”) (citing Rakas
v. Illinois, 439 U.S. 128, 148 (1978). 	Generally, defendants, when asserting their
constitutional rights against searches and seizures, cannot do so vicariously through

others. State v. Munoz, 111 N.M. 118, 119, 802 P.2d 23, 24 (Ct. App. 1990) (“An
individual aggrieved by an illegal search only through the introduction of evidence
secured by a search of a third person’s premises or property has not suffered an
infringement of his [F]ourth [A]mendment rights.”); United States v. Padilla, 508 U.S.
77, 81 (1993) (per curiam) (“It has long been the rule that a defendant can urge the
suppression of evidence obtained in violation of the Fourth Amendment only if that
defendant demonstrates that his Fourth Amendment rights were violated by the
challenged search or seizure.”); Rakas, 439 U.S. at 134 (“A person who is aggrieved
by an illegal search and seizure only through the introduction of damaging evidence
secured by a search of a third person’s premises or property has not had any of his
Fourth Amendment rights infringed.”). In Van Dang, our Supreme Court held that
even the driver of a rental car did not have standing to challenge a search of the car
when that person was neither the one who rented the car nor listed as an authorized
driver. 2005-NMSC-033, ¶ 10, n.1.
{12} 	We have previously stated that a passenger in a car cannot assert the Fourth
Amendment rights of the driver of the car to be free from unreasonable searches and
seizures. State v. Chapman, 1999-NMCA-106, ¶ 26, 127 N.M. 721, 986 P.2d 1122
(“Even if the driver could raise an invasion of her own Fourth Amendment rights
because of a possessory interest in the car, an issue that we do not address or decide,
that right may not be vicariously asserted by [the d]efendant.”). 	In Chapman, this

Court referenced Alderman v. United States, 394 U.S. 165, 174 (1969) (plurality
opinion) as recognition for the principle that “Fourth Amendment rights are personal
rights which . . . may not be vicariously asserted.” 1990-NMCA-106, ¶ 26. 	The
Chapman Court refused to review the merits of that defendant’s argument. Id.
{13} 	Defendant urges us to analyze the issue of standing to contest a pretextual stop
under the New Mexico Constitution. He argues that Article II, Section 10 of the New
Mexico Constitution provides broader protections than does the Fourth Amendment
of the United States Constitution, therefore, it provides a broader basis for us to find
he has standing. We note that our Supreme Court has made reference to the fact that
the Court has not yet analyzed the subject of pretextual stops under our state
Constitution. State v. Gonzales, 2011-NMSC-012, ¶ 19, 150 N.M. 74, 257 P.3d 894
(Bosson, J., concurring). Our Supreme Court was recently faced with the argument
that “an arrest was unconstitutional because the stop was pretextual at its inception
and therefore unconstitutional under Article II, Section 10 of the New Mexico
Constitution citing . . . Ochoa[.]” Schuster v. N.M. Dept. of Taxation and Revenue,
2012-NMSC-025, ¶ 32, 283 P.3d 288. The Court did not address the constitutional
argument but instead applied the Ochoa test. 	We decline to undertake such an
analysis here.
{14} 	In the case before us, Defendant was not a passenger in the car that was
stopped; in fact, he was not present at the scene and played no role in the supposed

pretextual stop and subsequent seizure of evidence from Ortega, who had already left
the scene of the traffic stop. Defendant had no possessory interest in the car. Even
the evidence seized from Ortega had a tenuous connection to the stop of the car.
Ortega had returned to her own motel room. 	She voluntarily emerged with the
methamphetamine, which she voluntarily handed over to the police without the need
to conduct a search. 	She also voluntarily provided unsolicited details about the
purchase of the drugs. See State v. Soto, 2008-NMCA-032, ¶ 25, 143 N.M. 631, 179
P.3d 1239 (“Where the acquisition of evidence is sufficiently removed from the
unlawful police conduct, the deterrent value of excluding it is diminished.” (internal
quotation marks and citation omitted)).
{15} 	At the suppression hearing, the district court ruled that Defendant had standing
and that the stop of the car Ortega was riding in was not pretextual. We will affirm
a ruling of a district court if it is right for any reason. See Meiboom v. Watson, 2000-
NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (“This Court may affirm a district
court ruling on a ground not relied upon by the district court, [but] will not do so if
reliance on the new ground would be unfair to appellant.” 	(alteration in original)
(internal quotation marks and citation omitted)).
{16} 	Defendant’s challenge to the pretextual stop of the car amounts to a vicarious
assertion of the Fourth Amendment rights of others and his motion challenges the stop
to the extent that it led to the seizure of evidence. 	Consistent with Chapman, we

conclude that Defendant does not have standing to argue a motion to suppress
evidence that may have resulted from the pretextual stop of a car in which he neither
was a driver, a passenger, nor did he have a possessory interest in the car. 	1999-
NMCA-106, ¶ 26. Therefore, it was not error for the district court to deny the motion
to suppress evidence that may have resulted from the pretextual stop alleged by
Defendant.
II. 	Warrantless Search
{17} 	Defendant next argues that a warrantless search of his hotel room was improper
and that the district court should have granted his motion to suppress evidence. He
acknowledges that no evidence was obtained from the hotel room but he contends that
the infringement on his constitutional right to be free from unreasonable searches and
seizures was “so egregious” that “some form of remedy” should be crafted, such as
“the suppression of all evidence obtained through the entire unconstitutional
investigation in this matter.” 	We employ the same standard of review articulated
above to analyze this second suppression issue.
{18} 	The district court took note of the State’s argument that the pretrial motion to
suppress was the subject of eight hours of hearings, and Defendant failed to raise the
issue of the hotel room search during that time. 	The court then observed that the
motion to suppress late in the proceedings appeared to be moot, stating that it:
has to consider that the defense is asking for suppression of physical
evidence. 	There was no physical evidence obtained in that particular

search. The physical evidence had been obtained prior to that. That has
been discussed and argued substantially prior to the beginning of trial
today.
The [c]ourt finds that the motion to suppress filed at this late date
. . . still would not produce anything such that it would justify a granting
of that motion; therefore, the [c]ourt will deny the motion to suppress.
{19} 	A reviewing court will not find reversible error unless that error results in
prejudice to the defendant. Kysar v. BP Am. Prod. Co., 2012-NMCA-036, ¶ 21, 273
P.3d 867 (“[E]ven if a district court makes an erroneous evidentiary ruling, it does not
constitute reversible error unless it results in prejudice.”); Rule 11-103(A) NMRA (“A
party may claim error in a ruling to admit or exclude evidence only if the error affects
a substantial right of the party[.]”); City of Albuquerque v. Ackerman, 82 N.M. 360,
365, 482 P.2d 63, 68 (1971) (“Harmless error in the exclusion of evidence cannot be
the basis for a new trial.”). Courts in other jurisdictions have held that a motion to
suppress evidence is moot when there is no evidence seized. United States v. Stearn,
597 F.3d 540, 545 n.3 (3d Cir. 2010) (ruling that “because no evidence was seized at
this location, this point is moot”); United States v. Fernandez, 500 F. Supp. 2d 661,
667 (W.D. Tex. 2006); State v. Keawe, 108 P.3d 304, 310 (Haw. 2005); People v.
Finch, 854 N.Y.S.2d 885, 890 (2008); State v. Sweet, 675 P.2d 1236, 1240 (Wash.
App. 1984) (“Because there was no evidence to suppress, there can be no error.”).
{20} 	In the case before us, no evidence was seized after the officers’ unwarranted
entry into Defendant’s hotel room. Thus, no prejudice was suffered by Defendant.

Therefore, the district court did not err in denying the motion to suppress evidence
pertaining to the hotel room search.
III. 	Failure to Disclose Recording
{21} 	After his conviction, Defendant moved for a new trial, claiming that he was
prejudiced by the State’s failure to produce the police-taped recording of Defendant’s
interview while in custody. 	An audio recording of part of the interview turned up
after trial and was provided to defense counsel. Defendant filed his motion for a new
trial on September 30, 2010. The State filed its response on October 15, 2010. Three
days later, the district court entered its judgment and sentence. Defendant filed his
notice of appeal on November 17, 2010. We were unable to find an order entered by
the district court denying Defendant’s motion for new trial in the court record.
However, common sense would dictate that the court’s entry of the judgment and
sentence indirectly denies the motion.
{22} 	We will not reverse a district court’s denial of a motion for a new trial absent
a manifest abuse of discretion. State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M.
192, 185 P.3d 363. “An abuse of discretion occurs when the ruling is clearly against
the logic and effect of the facts and circumstances of the case. 	We cannot say the
[district] court abused its discretion by its ruling unless we can characterize it as
clearly untenable or not justified by reason.” Id. (internal quotation marks and citation
omitted).

{23} 	Our courts have adopted a three-part test to determine whether the loss of
evidence by the State that leads to a deprivation is considered reversible error. State
v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981). A court must address
whether “[(]1) [t]he State either breached some duty or intentionally deprived the
defendant of evidence; [(]2) [t]he improperly ‘suppressed’ evidence must have been
material; and [(]3) [t]he suppression of this evidence prejudiced the defendant.” Id.
The purpose of the test “is to assure that the [district] court will come to a
determination that will serve the ends of justice.” Id. Factors to consider in applying
the test “include the presence of negligence or bad faith on the part of the state, the
importance of the evidence to the defendant’s case, and the amount of other evidence
of guilt adduced at trial.” State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct.
App. 1990).
{24} 	In the case before us, we focus on the first and third Chouinard factors. The
State asserts that Defendant was alerted to the existence of a recorded interview by
police two years before trial; that the State repeatedly tried to obtain the recorded
statement before trial; that it was believed that the statement had been recorded over
and lost; and that the recording had been misplaced by law enforcement officers but
was found after the trial ended. There was no evidence presented of bad faith on the
part of the State.

{25} 	If Defendant cannot show that he was prejudiced by the misplacement of the
recording, then his argument fails. To show prejudice, Defendant must establish that
he was unable to receive a fair trial without the missing evidence. State v. Sanchez,
1999-NMCA-004, ¶ 8, 126 N.M. 559, 972 P.2d 1150.
To establish . . . whether a defendant will be able to receive a fair
trial in the face of lost evidence . . . , a court must . . . weigh the lost
evidence against the remaining evidence available to the defendant,
including his or her ability to cross-examine witnesses and to use the loss
of the evidence in preparing a defense.
Id. ¶ 9.
{26} 	An officer present at the interview, Agent De La Garza, testified as a witness
at trial and was cross-examined by Defendant’s counsel, including specific questions
about the missing recording and the notes taken by him and a fellow officer. 	The
ability to cross-examine an officer who conducted the interview and recording
satisfies one factor from Sanchez in assessing whether Defendant had the opportunity
to receive a fair trial in the face of lost evidence.
{27} 	Defendant argues that he could have used the recording at trial to draw out
additional evidence and to try to undermine Agent De La Garza’s account of the
interview. At trial, the State submitted as evidence the notes of two officers who were
present at the interview with Defendant. According to those notes, Defendant, after
signing a waiver of his Miranda rights, confessed to selling methamphetamine out of
his room at the American Motor Inn, including to Ortega; named the sources of the

drugs he obtained; and provided details of his weekly income from selling drugs. On
the recording, which is of poor quality and captures only a seven-minute portion of
the interview, Defendant is heard telling the officers that he sold about one ounce of
methamphetamine per week to bring in about $1,800 in order to finance his expenses
living at the hotel and that one of his sources for drugs was a man named Robert
Munoz. When he testified at trial, Defendant denied selling drugs or knowing Munoz.
The recording, had it been available at trial, would have supported the notes and
testimony of the officers and would have undercut the claims of Defendant. 	The
absence of the recording may have benefitted Defendant because it was not available
to question or to impeach his testimony.
{28} 	Applying Chouinard, we conclude that Defendant has not established that he
was prejudiced by the discovery and disclosure of a portion of his recorded statement
with law enforcement officers after the trial had concluded. Therefore, it was not an
abuse of discretion for the district court to deny his motion for a new trial based on the
late disclosure of the recording.
IV. 	Conspiracy Conviction and Wharton’s Rule
{29} 	Finally, Defendant asserts that Wharton’s Rule precludes a charge of conspiracy
in this case because the underlying charge of trafficking—involving an exchange of
drugs between defendant and Ortega—is confined to only those two participants and
constitutes the same conduct as that underlying the conspiracy. The State contends

that Defendant failed to preserve this issue and that we should review such an
unpreserved issue for fundamental error. Defendant contends that Wharton’s Rule is
a matter of statutory interpretation that involves questions of double jeopardy and
double jeopardy can be raised at any time. 	Our United States Supreme Court has
specifically held that “Wharton’s Rule does not rest on principles of double
jeopardy[.]” Iannelli v. United States, 420 U.S. 770, 782 (1975). “[Wharton’s Rule]
has current vitality only as a judicial presumption [of merger], . . . in the absence of
legislative intent to the contrary.” State v. Carr, 95 N.M. 755, 766, 626 P.2d 292, 303
(Ct. App. 1981), overruled on other grounds as recognized by State v. Olguin, 120
N.M. 740, 906 P.2d 731 (1995).
{30} 	Because this issue was not properly raised below and is raised for the first time
on appeal, it will be reviewed for fundamental error. 	State v. Cunningham, 2000-
NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176. 	The doctrine of fundamental error
exists only “for the protection of those whose innocence appears indisputabl[e], or
open to such question that it would shock the conscience to permit the conviction to
stand.” 	Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation
omitted); see also State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992)
(finding fundamental error upon one or more of the following bases: “there has been
a miscarriage of justice;” the question of the defendant’s guilt “is so doubtful that it
would shock the conscience” to allow his conviction to stand; or “substantial justice

has not been done”). We will reverse for fundamental error when the foundation or
basis of a defendant’s case or an essential right in a defense is affected. Id. ¶ 13.
{31} 	Wharton’s Rule states that “an agreement by two persons to commit a particular
crime cannot be prosecuted as a conspiracy when the particular crime is of such a
nature as to necessarily require the participation of two persons for its commission.”
State v. Smith, 102 N.M. 512, 514, 697 P.2d 512, 514 (Ct. App. 1995) 	(internal
quotation marks and citation omitted). By raising Wharton’s Rule, the issue before
us is whether the crime of trafficking by possession with intent to distribute
methamphetamine and conspiracy to commit trafficking become one crime.
{32} 	“The classic Wharton’s Rule offenses–adultery, incest, bigamy, [dueling]– are
crimes that are characterized by the general congruence of the agreement and the
completed substantive offense.” 	Iannelli, 420 U.S. 770 at 782 (1975). 	In these
instances, “[t]he parties to the agreement are the only persons who participate in [the]
commission of the substantive offense[.]” Id. Wharton’s Rule applies:
(1) when the parties to the agreement are the only persons who
participate in the offense and the immediate consequences of the crime
rest only on themselves; and (2) when the agreement that attends the
substantive offense does not appear likely to pose the sort of threat to
society that the law of conspiracy was designed to avert.
Smith, 102 N.M. at 514, 697 P.2d at 514. 	“The most important factor . . . is that
concerted action must be logically necessary to the substantive offense. 	This is

similar to saying that conspiracy and the substantive offense are the same crime[.]”
Id.
{33} 	There are only two cases in New Mexico that have addressed Wharton’s Rule,
Carr and Smith. In Carr, this Court upheld the conspiracy conviction of a defendant
who wrote a prescription that was used to pass a controlled substance on to other
purchasers. 95 N.M. at 766, 626 P.2d at 303. In Carr, we stated:
The harm involved in the substantive offense [of] trafficking in
controlled substances . . . is not restricted to the parties to the agreement.
The parties to the agreement to traffic are usually not the only persons
who participate in commission of the substantive offense: the controlled
substances are passed on, as happened here, to other purchasers. 	The
agreement that attends the substantive offense does seem to pose those
threats to society that the law of conspiracy seeks to avert. 	An
agreement to commit trafficking may very well produce agreements to
engage in a more general pattern of criminal conduct as the controlled
substances are diverted from their legitimate medical uses.
Id. (emphasis added).
{34} 	The Carr court found that because of the difference between the parties’
agreement to traffic, where the parties were not the only persons who participated in
the commission of the substantive offense and traditional Wharton’s Rule offenses,
it declined to give any significant weight to the Rule’s presumption.
{35} 	In Smith, the defendant was convicted of harboring a felon and conspiracy to
harbor a felon. This Court found that the two crimes did not merge under the facts of
the case because the immediate consequences of harboring a felon rests on society,

and the harboring of the felon would be more successful if the felon knew someone
was helping, thus, the danger to society is increased. 	Smith, 102 N.M. at 514, 697
P.2d at 514. The Smith court agreed that a narrow interpretation of Wharton’s Rule
was required. Id. at 515, 697 P.2d at 515; see United States v. Previte, 648 F.2d 73,
77 (1st Cir. 1981) (stating Wharton’s Rule is, to some extent, a relic of the discredited
merger doctrine and should be interpreted narrowly).
{36} 	The federal courts have had more opportunity to address this issue. In Iannelli,
420 U.S. 770, the United States Supreme Court carefully analyzed the Rule’s
justification and its proper role in federal law. 	Iannelli involved the violation of a
federal gambling statute. This statute made it a crime for five or more persons to be
involved in a gambling business prohibited by state law. The Supreme Court revisited
the history of Wharton’s Rule which was captured in Wharton’s Treatises; its
relationship, if any, with double jeopardy; third party exceptions; and legislative
intent. Id. at 775, 782, 787. Iannelli explained that the Rule is essentially an aid for
purposes of determining legislative intent. The Supreme Court found that if Congress
intended to prevent the possibility of prosecuting conspiracy offenses by merging
them into the specific gambling statute, it would have explicitly said so. It did not,
therefore, Congress intended each offense to be independent of the other.
{37} 	The Eighth Circuit Court of Appeals has held that when more than two persons
were involved in a conspiracy to distribute drugs, Wharton’s Rule does not apply.

United States v. Jones, 801 F.2d 304, 311 (8th Cir. 1986). 	On the other hand, the
Eighth Circuit Court of Appeals has also held Wharton’s Rule does apply when a
“mere sales agreement with respect to contraband does not constitute a conspiracy;
there must be some understanding ‘beyond’ that before the evidence can support a
conviction for conspiracy.” United States v. West, 15 F.3d 119, 121 (8th Cir. 1994)
(citing to United States v. Prieskorn, 658 F.2d 631 (8th Cir. 1981)). This principle has
been applied in State v. Roldan, 714 A.2d 351, 356 (N.J. Super. Law Div. 1998) which
held that “[a] simple agreement to buy drugs is insufficient to establish a conspiracy
between the seller and the buyer.” 	The Roldan court further stated the concerted
criminal activity must go “beyond the kind of simple agreement inevitably incident
to the sale of contraband[.]” Id. at 182-83, 714 A.2d at 356.
{38} 	The case at hand is distinguishable from Carr as there were not multiple
purchasers involved, only Ortega. The charge of trafficking with intent to distribute
methamphetamine required the participation of the same two people, Defendant and
Ortega, who were also involved in any alleged conspiracy to sell the same drugs.
Defendant, a single seller, and Ortega, a single buyer, engaging in a single drug
transaction. They were the only parties that participated in this particular transfer of
two plastic-wrapped packages of methamphetamine. This simple agreement to buy
drugs is insufficient to also establish a separate conspiracy between the seller and the
buyer. 	See West, 15 F.3d at 121; see also United States v. Hunter, 478 F.2d 1019,

1024 (7th Cir.) (1973) (stating that the required participation of the same two persons
of a conspiracy is analogous to an individual attempt to commit an individual offense).
{39} 	Unless the Legislature explicitly states otherwise, Wharton’s Rule supports the
presumption that the Legislature did not intend separate punishments for the
conspiracy and the completed substantive crime. Iannelli, 420 U.S. at 785-86. After
a careful reading of NMSA 1978, Sections 30-28-2 (1979) and 30-31-20 (2006), we
are unable to find any indication that the New Mexico Legislature stated a different
intention.
{40} 	The agreement between Defendant and Ortega to sell and purchase the
methamphetamine 	was 	logically 	necessary 	for 	the 	transferring 	of 	the
methamphetamine from one to another. Additionally, the immediate consequences
of the crime rested only on Ortega, who received a twenty-seven-year sentence and
Defendant who was convicted of not only the trafficking but the conspiracy as well.
Their limited agreement between themselves does not appear likely to pose the sort
of threat to society that the law of conspiracy was designed to avert.
{41} 	Our Legislature has not explicitly stated that there should be separate
punishments for the conspiracy to commit trafficking and the completed charge of
trafficking, where Defendant’s and Ortega’s concerted actions were necessary for the
completion of the trafficking offense. Wharton’s Rule precludes Defendant’s charge
of conspiracy. 	Substantial justice has not been done where Defendant has been

convicted and sentenced for trafficking by possession with intent to distribute
methamphetamine (eighteen years, two years parole) and for conspiracy to commit
trafficking (nine years, two years parole) when the two charges, in this case, have
merged. It is therefore fundamental error to impose a conspiracy conviction as well.
CONCLUSION
{42} 	For the foregoing reasons, we affirm Defendant’s conviction for trafficking,
reverse his conviction for conspiracy, and remand to the district court to dismiss
Defendant’s conspiracy conviction and corresponding sentence.
{43} 	IT IS SO ORDERED.
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M. MONICA ZAMORA, Judge
WE CONCUR:
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RODERICK T. KENNEDY, Chief Judge
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TIMOTHY L. GARCIA, Judge