August 19, 2021- State of New Mexico v. Shannon Dwane Jackson, No. A-1-CA-38218

OCR transcription for search; preserved printed pages are authoritative

10
11

12
13
14
15
16
17
18

19

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 8/19/2021 2:33 PM

Filing Date: August 19, 2021 / [>
~
NO. A-1-CA-38218 Mark Reynolds

STATE OF NEW MEXICO,

Opinion Number:

Plaintiff-Appellee,

V.

SHANNON DWANE JACKSON,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred T. Van Soelen, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
DUFFY, Judge.	2
{1} 	The memorandum opinion filed on August 9, 2021, is hereby withdrawn and	3
replaced with this opinion.	4
{2} 	Defendant Shannon Dwane Jackson appeals his convictions for trafficking of	5
a controlled substance, contrary to NMSA 1978, Section 30-31-20 (2006); tampering	6
with evidence, contrary to NMSA 1978, Section 30-22-5 (2003); resisting, evading,	7
or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(B) (1981); and	8
possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)	9
(2001, amended 2019). Defendant argues that (1) the State presented insufficient	10
evidence to prove he tampered with evidence; (2) the district court erred in admitting	11
evidence that Defendant owned a gun; (3) the district court erred in denying	12
Defendant’s motion for a mistrial based on a previously undisclosed supplemental	13
police report that was discovered midtrial; and (4) the evidence found during the	14
search of his person should have been suppressed as it was outside the scope of the	15
search warrant. We reverse Defendant’s conviction for tampering with evidence, but	16
otherwise affirm.	17
BACKGROUND	18
{3} 	Police obtained a warrant to search Defendant’s residence for narcotics.	19
Officer Rafael Aguilar and Sergeant Waylon Rains of the Clovis Police Department	20

2
arrived at Defendant’s home to execute the warrant, but due to safety concerns, they	1
chose to wait until Defendant exited his home. A short time later, the officers	2
observed Defendant leave the house and get into the passenger side of a vehicle with	3
a female driver.	4
{4} 	Officer Aguilar and Sergeant Rains followed the vehicle and observed it stop	5
at another house that was known to be involved in narcotic dealings. Defendant went	6
inside for approximately five minutes and then returned to the vehicle, whereupon it	7
drove off. A short time later, Officer Aguilar and Sergeant Rains stopped the vehicle.	8
Officer Aguilar approached the passenger side of the car and observed Defendant	9
with a large amount of money on his lap. He asked Defendant to get out of the car	10
and, as he did, Officer Aguilar observed a large baggie with smaller baggies in	11
Defendant’s pocket. Officer Aguilar attempted to restrain Defendant after he got out	12
of the car. Defendant began to resist arrest and a struggle ensued. At this point,	13
Defendant pulled the large baggie from the right pocket of his shorts and threw it to	14
the female driver. After Defendant was restrained, Sergeant James Gurule, also with	15
the Clovis Police Department, conducted a search of Defendant. He located two zip-	16
lock bags containing $2,230 in cash. The officers also confiscated the bag Defendant	17
had thrown into the car, which contained many smaller baggies of crack cocaine—	18
sixty-three in total.	19

3
{5} 	After conducting the traffic stop, the officers proceeded to Defendant’s	1
residence to execute the search warrant. Officers discovered the following items in	2
Defendant’s home: a .380 caliber semi-automatic pistol, several small zip-lock	3
baggies, several digital scales, and a brown bag with small zip-lock baggies inside.	4
Following a jury trial, Defendant was convicted on all charges. He appeals.	5
DISCUSSION	6
I. 	Defendant’s Conviction for Tampering With Evidence	7
{6} 	Defendant first argues that there was insufficient evidence to support his	8
conviction for tampering with evidence. Under the instruction given, the State had	9
to prove that Defendant “threw baggies of crack[]cocaine into a vehicle” and	10
“intended to prevent, apprehension, prosecution, or conviction of himself for the	11
crime of [t]rafficking of a [c]ontrolled [s]ubstance.” Defendant claims that his act of	12
throwing baggies of crack cocaine in plain view of multiple police officers does not	13
constitute any of the prohibited acts listed in Section 30-22-5. The State concedes	14
that there is insufficient evidence to sustain the tampering conviction. While we are	15
not bound by the State’s concession, we accept it here. See State v. Montoya, 2015-	16
NMSC-010, ¶ 58, 345 P.3d 1056.	17
{7} 	The New Mexico Supreme Court has stated that the “tampering with evidence	18
criminal statute, . . . [Section] 30-22-5 . . . , makes it a crime to hide or alter evidence	19
of a crime.” State v. Radosevich, 2018-NMSC-028, ¶ 1, 419 P.3d 176. The statute	20

4
provides that “[t]ampering with evidence consists of destroying, changing, hiding,	1
placing or fabricating any physical evidence with intent to prevent the apprehension,	2
prosecution or conviction of any person or to throw suspicion of the commission of	3
a crime upon another.” Section 30-22-5(A). As such, “[t]he tampering statute	4
punishes those who try to frustrate the criminal justice system by obstructing access	5
to evidence of a crime.” Radosevich, 2018-NMSC-028, ¶ 10.	6
{8} 	Our courts have drawn a distinction between acts occurring in the presence of	7
an officer and those that attempted to conceal evidence outside of the view of an	8
officer. Compare State v. Roybal, 1992-NMCA-114, ¶¶ 7, 29, 115 N.M. 27, 846 P.2d	9
333 (holding that the evidence was insufficient to support the defendant’s conviction	10
for tampering where the defendant dropped some items from his hand to the ground	11
as officers approached), with State v. Delgado, 2009-NMCA-061, ¶ 24, 146 N.M.	12
402, 210 P.3d 828 (holding that there was sufficient evidence to support a conviction	13
for 	tampering 	where 	the 	police 	observed 	the 	defendant 	making 	suspicious	14
movements, but could not directly see what the defendant was doing and later	15
discovered evidence in the area), overruled on other grounds by State v. Aragon,	16
2010-NMSC-008, ¶ 19, 147 N.M. 474, 225 P.3d 1280; and State v. Graham, 2003-	17
NMCA-127, ¶ 13, 134 N.M. 613, 81 P.3d 556 (holding that there was sufficient	18
evidence to support the defendant’s conviction for tampering where the defendant	19

5
dropped evidence behind the seat in his truck so as to conceal it from the police),	1
rev’d on other grounds, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.	2
{9} 	Here, Defendant’s actions plainly occurred in the presence of the police. The	3
officers saw Defendant throw the baggie and were able to immediately recover it.	4
The evidence was never concealed from the officers, and we therefore agree with	5
the parties that Defendant’s conviction for tampering with evidence is not supported	6
by sufficient evidence.	7
II. 	Admission of Evidence That Defendant Owned a Gun	8
{10} 	Defendant argues that the district court abused its discretion in admitting	9
evidence of the gun found inside the residence, over Defendant’s objection.	10
Defendant claims that the gun evidence’s “probative value was substantially	11
outweighed by the risk of prejudice[,]” arguing that he was not armed at the time of	12
his arrest and the State presented no evidence that the presence of a single handgun	13
in the home made it more likely that Defendant was trafficking drugs. See Rule 11-	14
403 NMRA. The State responds that Defendant’s “ownership of a gun was relevant	15
to establishing that he was a drug dealer.” At trial, Sergeant Rains testified that it is	16
“common” for anyone involved in the drug trade to have a gun and Officer Aguilar	17
testified that firearms and sales of narcotics “go hand in hand.”	18
{11} 	Assuming without deciding that the district court abused its discretion in	19
admitting evidence of the gun, we conclude that any error was harmless. “When an	20

6
error is preserved, we review for harmless error[.]” State v. Astorga, 2015-NMSC-	1
007, ¶ 42, 343 P.3d 1245. “Absent a constitutional violation, we look to whether	2
there is a reasonable probability that the error affected the verdict.” Id. ¶ 43. “[The	3
d]efendant bears the initial burden of demonstrating that he was prejudiced by the	4
error.” Id. “To put the error in context, we often look at the other, non-objectionable	5
evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what	6
role the error played at trial.” State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215.	7
{12} 	Defendant argues that the gun evidence created the impression that Defendant	8
was dangerous and that, in turn, encouraged the jury to convict him of trafficking a	9
controlled substance rather than simple possession. The distinction between the two	10
offenses turned on whether the jury found that Defendant intended to transfer the	11
crack 	cocaine 	to 	another. 	The 	State 	presented 	evidence 	that 	Defendant 	was	12
apprehended with sixty-three baggies of crack cocaine and more than $2,200 in cash	13
on his person. The State also presented evidence that the quantity of crack cocaine	14
found on Defendant and the way it was individually packaged indicated that the	15
drugs were intended for sale to individuals. In addition, police found several digital	16
scales and empty small baggies at Defendant’s residence. In light of this and other	17
evidence presented by the State at trial, we are doubtful that the admission of the	18
gun evidence had any probable impact on the jury’s deliberations regarding	19

7
trafficking versus possession. Therefore, even if the district court erred in admitting	1
the gun evidence, we hold that any error was harmless.	2
III. 	Defendant’s Motion for a Mistrial	3
{13} 	Defendant contends that the district court abused its discretion in denying his	4
motion for a mistrial after learning, during trial, that the State had failed to disclose	5
a supplemental police report. We review the district court’s denial of a motion for	6
mistrial for an abuse of discretion. State v. Hernandez, 2017-NMCA-020, ¶ 14, 388	7
P.3d 1016. “The district court abuses its discretion in ruling on a motion for mistrial	8
if it acts in an obviously erroneous, arbitrary, or unwarranted manner, or when the	9
decision is clearly against the logic and effect of the facts and circumstances before	10
the court.” Id. (internal quotation marks and citations omitted).	11
{14} 	During cross-examination on the first day of trial, Sergeant Gurule testified	12
that he had written a supplemental police report documenting Defendant’s arrest.	13
The report was not given to Defendant prior to trial, and he moved for a mistrial	14
based on the omission. The State explained to the court that it, too, had not received	15
Sergeant Gurule’s report before trial and did not know that the report existed. The	16
State obtained the report and provided a copy of it to Defendant later that day. Before	17
trial resumed the following day, the district court admonished the prosecution for	18
failing to produce the supplemental police report. However, the district court found	19
there was no prejudice to Defendant because there was nothing in the supplemental	20

8
report that was exculpatory and the report was consistent with Sergeant Gurule’s	1
trial testimony. The district court stated that Defendant would be allowed to recall	2
Sergeant Gurule and Sergeant Rains for further cross-examination.	3
{15} 	Defendant argues that because more than four years had passed since the date	4
of the incident and the trial, and because the State had repeatedly declared it was	5
ready for trial, the “State should have known, and had the responsibility to know,	6
that [Sergeant] Gurule’s report existed and had never been turned over to the	7
defense.” Although Defendant concedes that there is a “lack of apparent prejudice”	8
from the State’s discovery violation, he argues that a mistrial would have been a way	9
to enforce the State’s discovery obligations. “When the [s]tate discovers additional	10
evidence, Rule 5-505(A) [NMRA] requires prompt written notice be provided to a	11
defendant.” State v. Smith, 2016-NMSC-007, ¶ 25, 367 P.3d 420. “To enforce Rule	12
5-505(A) the trial court has a number of remedies at its disposal including granting	13
a continuance, prohibiting a party from introducing the undisclosed material	14
evidence, or entering any other order deemed appropriate.” Smith, 2016-NMSC-007,	15
¶ 25. The rule gives a court broad discretion to fashion a remedy that it deems proper	16
under the circumstances. See Rule 5-505(B).	17
{16} 	In this case, the district court dealt with the failure to disclose by admonishing	18
the prosecution and allowing Defendant to recall the officers for cross-examination.	19
Defendant makes no argument as to why the district court’s remedy was insufficient	20

9
under the circumstances. Given that the supplemental report was merely cumulative	1
and Defendant conceded that he was not prejudiced, we see no basis to conclude that	2
the district court abused its discretion. See State v. Harper, 2011-NMSC-044, ¶ 16,	3
150 N.M. 745, 266 P.3d 25 (stating that “the mere showing of violation of a	4
discovery order, without a showing of prejudice, is not grounds for sanctioning a	5
party”).	6
IV. 	Defendant’s Motion to Suppress	7
{17} 	Finally, Defendant argues that the district court should have suppressed the	8
evidence found during the traffic stop because the warrant authorized only a search	9
of his residence. He maintains that because the warrant did not include his name or	10
description, the police had no justification to stop the vehicle.	11
{18} 	Defendant moved to suppress the evidence obtained after the traffic stop on	12
that basis. In response, the State argued that the traffic stop was supported by	13
reasonable suspicion, citing State v. Alderete, 2011-NMCA-055, 149 N.M. 799, 255	14
P.3d 377. The district court found that there was reasonable suspicion for the stop	15
based on the fact that the officers had a search warrant for Defendant’s residence	16
and their observations while conducting surveillance on Defendant’s residence, and	17
therefore denied Defendant’s motion to suppress.	18
{19} 	On review of a motion to suppress evidence, “[w]e review factual questions	19
under a deferential substantial evidence standard, and we review the application of	20

10
the law to the facts de novo.” Id. ¶ 9. “In doing so, we review the facts in the light	1
most favorable to the district court’s factual findings so long as substantial evidence	2
exists to support those findings.” Id. (omission, internal quotation marks, and	3
citation omitted).	4
{20} 	As the State noted below, this case is substantially similar to Alderete. There,	5
officers had received a tip from a confidential informant that a house was being used	6
as a stash house for large amounts of marijuana. Id. ¶ 2. The officers had previously	7
received reliable information from the informant. 	Id. 	The officers conducted	8
surveillance of the house throughout the week, and approximately four days in, they	9
observed two men moving large boxes from the back of a pickup truck into the	10
house. Id. The officers obtained a search warrant for the house. Id. Later that day,	11
officers observed the defendant driving from the subject house and stopped the	12
vehicle. Id. ¶ 4. During a subsequent inventory search of the vehicle, the officer	13
observed two large cardboard boxes containing “small brick-like shaped items,”	14
which were later confirmed to be over one hundred bundles of marijuana. Id. ¶ 6.	15
{21} 	The defendant moved to suppress the drug evidence found in her car, arguing	16
that the stop was pretextual and the real reason for the stop was to investigate her	17
involvement in drug activity. Id. ¶ 1. This Court held that the officers had reasonable	18
suspicion for the stop, noting that “the detectives in the present case who were	19
observing the subject house had specific factual information regarding the residents’	20

11
possible involvement in drug trafficking and therefore had reasonable suspicion to	1
conduct an investigatory stop of [the d]efendant’s vehicle to confirm or dispel their	2
suspicions.” Id. ¶ 18. As well, officers had a reliable tip from an informant, which	3
was consistent with officers’ own observations, the officers obtained a search	4
warrant for the residence, and they witnessed the defendant leave the house in the	5
car they later stopped. Id. ¶¶ 18-19. We stated that the detectives “could reasonably	6
suspect that a large amount of drugs had been in the house that [the d]efendant had	7
just left and that [the d]efendant could be transporting those drugs to an alternate	8
location.” Id. ¶ 19. And although “the detectives did not have any information	9
regarding [the d]efendant herself, they had reasonable suspicion that the driver of	10
the vehicle that left the garage, whoever that may have been, was involved in the	11
drug activity they had observed throughout the course of their investigation, and they	12
were permitted to make an investigatory stop to confirm or dispel their suspicions.”	13
Id. ¶ 20. Based on all of these considerations, we held that a stop for the purpose of	14
investigating drug activity was supported by reasonable suspicion. Id.	15
{22} 	The same considerations are present in this case. The officers had obtained a	16
search warrant to search Defendant’s residence for narcotics. The affidavit attached	17
to the search warrant detailed how an informant had relayed information for the past	18
several weeks regarding drug trafficking at Defendant’s house. The affidavit noted	19
that “[t]his informant has established their credibility and reliability by making not	20

12
less 	than 	three 	controlled 	purchases 	of 	controlled 	substances” at 	the 	house.	1
According to the affidavit, the informant had seen Defendant selling cocaine from	2
the residence and had stated that Defendant conceals the cocaine on his person.	3
{23} 	Prior to executing the search warrant, the officers conducted surveillance of	4
the residence for approximately thirty to forty-five minutes. They watched as	5
Defendant left the house with a woman, got into a car, and drove away. As they	6
attempted to catch up with the vehicle, the officers testified that it stopped at another	7
house known to be involved in narcotic dealings. Defendant entered this house and	8
was inside for less than five minutes before returning to the vehicle. A short time	9
later, the officers conducted the traffic stop.	10
{24} 	Based on the totality of the circumstances, specific and articulable facts	11
supported the officers’ suspicion that Defendant was engaged in illegal activity. We	12
affirm the district court’s conclusion that the traffic stop was supported by	13
reasonable suspicion.	14
CONCLUSION	15
{25} 	For the foregoing reasons, we reverse Defendant’s conviction for tampering	16
with evidence, but otherwise affirm.	17
{26} 	IT IS SO ORDERED.	18
__________________________________	19
MEGAN P. DUFFY, Judge	20

1
WE CONCUR:
2
3
Kristina Bogardus KRISTINA BOGARDUS, Judge
4 5
Dance Bythales
JANE B. YOHALEM, Judge
13