July 7, 2020-State of New Mexico v. Wade Willis, No. A-1-CA-38013

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Corrections to this opinion/decision not affecting the outcome, at the Court’s discretion, can occur up to the time of publication with
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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Filed 7/7/2020 12:50 PM
STATE OF NEW MEXICO, ‘

Plaintiff-A ppellee, a
Mark Reynolds
V. NO. A-1-CA-38013
WADE WILLIS,
Defendant-A ppellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY

Daniel A. Bryant, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Meryl E. Francolini, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Associate Appellate Defender

Santa Fe, NM
for Appellant

MEMORANDUM OPINION
HANISEE, Chief Judge.

«3 Defendant appeals his convictions for receiving stolen property and trafficking

methamphetamine. We issued a second notice of proposed summary disposition

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proposing to affirm in part and reverse in part. Defendant has filed amemorandum in
Opposition to our proposed summary affirmance, and the State has responded
indicating that it does not oppose our proposed reversal. For the reasons that follow,
we are not persuaded by Defendant’s argument that his conviction for trafficking was
not supported by sufficient evidence, and we therefore affirm. We reverse Defendant’s
conviction for receiving stolen property.

2; Defendant continues to argue that the State presented insufficient evidence to
convict him of trafficking. [MIO 16] We have already set out the relevant background
information in the notice of proposed summary disposition, and we understand there
to be no factual dispute. We therefore will avoid unnecessary repetition, and refer only
to the evidence and testimony relevant to our analysis.

3} The test for sufficiency of the evidence “is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Sutphin, 1988-NMSC-031, § 21, 107 N.M. 126, 753 P.2d 1314. In reviewing the
sufficiency of the evidence, we “view the evidence in the light most favorable to the
state, resolving all conflicts therein and indulging all permissible inferences therefrom
in favor of the verdict.” /d. “Where... a jury verdict in a criminal case is supported

by substantial evidence, the verdict will not be disturbed on appeal.” /d.

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4} In order to convict Defendant of trafficking methamphetamine, the State was
required to prove beyond a reasonable doubt that on or about December 8, 2016, (1)
Defendant had methamphetamine in his possession, (2) Defendant knew it was
methamphetamine or believed it to be methamphetamine or believed it to be some drug
or other substance the possession of which is regulated or prohibited by law, and (3)
Defendant intended to transfer it to another. [RP 140] See State v. Smith, 1986-
NMCA-089, 47, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the law of
the case against which the sufficiency of the evidence is to be measured.”’); see also
NMSA 1978, § 30-3 1-20(A)(3) (2006) (defining trafficking controlled substances by
possession with intent to distribute).

5} Defendant only challenges the sufficiency of the evidence to prove that he
intended to distribute the methamphetamine. [MIO 16] Specifically, Defendant argues
that the State presented no direct evidence that Defendant had engaged in drug sales.
In this case, however, there was expert witness testimony that the quantity of
methamphetamine recovered was consistent with trafficking. See State v. Curry, 1988-
NMCA-031, 97, 107 N.M. 133, 753 P.2d 1321 (“Intent to distribute may be inferred
when the amount of a controlled substance possessed is inconsistent with personal
use.”). Additionally, there was evidence that police recovered scales, plastic bags, and
a ledger during the search of the property. [MIO 3] See State v. Zamora, 2005-

NMCA-039, ¢ 24, 137 N.M. 301, 110 P.3d 517 (explaining that testimony presented

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regarding the quantity of crack cocaine, packaging, and scales was sufficient to
establish trafficking by possession with intent to distribute); State v. Hubbard, 1992-
NMCA-O014, 9 9, 113 N.M. 538, 828 P.2d 971 (stating that intent to distribute a
controlled substance may be inferred by surrounding facts and circumstances
including the manner of packaging of the controlled substance); see also State v.
Brenn, 2005-NMCA-121, § 24, 138 N.M. 451, 121 P.3d 1050 (“Intent is usually
established by circumstantial evidence.”’). This evidence is sufficient to permit a jury
to infer Defendant’s intent to distribute the methamphetamine.

(6; | Defendant also argues that the discovery of methamphetamine worth more than
$40,000, when contrasted with his modest living conditions, suggested that he was not
profiting from drug sales. [MIO 16] However, as explained in the first notice of
proposed summary disposition, “[c]ontrary evidence supporting acquittal does not
provide a basis for reversal because the jury is free to reject [a defendant’s] version
of the facts.” State v. Rojo, 1999-NMSC-001, § 19, 126 N.M. 438, 971 P.2d 829; see
also Sutphin, 1988-NMSC-031, § 21 (recognizing that the fact-finder may reject the
defendant’s version of the incident). Therefore, evidence of an apparent disparity
between Defendant’s living conditions and the living conditions that one might expect
would be enjoyed by persons engaged in selling drugs in the quantity discovered here

is not a basis for reversal. See State v. James, 1989-NMCA-089, 4 11, 109 N.M. 278,

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784 P.2d 1021 (“The question is not whether substantial evidence would have
supported an opposite result but whether such evidence supports the result reached.”’).
; _Inoursecond notice of proposed summary disposition, we proposed to reverse
Defendant’s conviction for receiving stolen property on the basis that the State did not
present sufficient evidence to establish that Defendant knew or believed that the
property in question was stolen. See NMSA 1978, § 30-16-11 (2006) (setting out the
elements of receiving stolen property). The State does not oppose this proposed
disposition, and we therefore reverse for the reasons set out in the notice. As we
reverse on this basis, we do not reach Defendant’s argument that it was plain error for
the district court to allow hearsay evidence regarding the theft of the stolen property.
33 | Accordingly, we affirm Defendant’s conviction for trafficking and reverse his
conviction for receiving stolen property. We therefore remand this case to the district

court for entry of an amended judgment and sentence in accordance with this opinion.

oe Ly Me

J. MILES HANISEE, Chief Judge

93 ITISSO ORDERED.

WE CONCUR:

fucg sling. A. Nedra,

JACQUELINE R. MEDINA, Judge

MEGAN P DUFFY, Wile