August 15, 2019- State of New Mexico v. Joe Ray Barela, No. A-1-CA-35311

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Court of Appeals of New Mexico
Filed 8/15/2019 9:32 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Neve at

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. No. A-1-CA-35311
JOE RAY BARELA,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Judith K. Nakamura, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM
for Appellant

MEMORANDUM OPINION
IVES, Judge.
3 Defendant Joe Ray Barela appeals his conviction, after a jury trial, for

possessing methamphetamine, in violation of NMSA 1978, § 30-31-23(E) (2011).

He argues that (1) the evidence is insufficient to support his conviction and (2)

1 admission of certain testimony in violation of the best evidence rule was plain error.
2 We affirm. 1
3 DISCUSSION
4 I. 	Substantial Evidence Supports Defendant's Conviction
5 	{2} 	Defendant argues that the State failed to present sufficient evidence that he
6 constructively possessed methamphetamine. We disagree.
7 	{3} 	When reviewing the sufficiency of the evidence, we "scrutin[ize] . . . the
8 evidence and supervis[e] ... the jury's fact-finding function to ensure that[] ... a
9 rational jury could have found beyond a reasonable doubt the essential facts required
''
10 for a conviction." State v. Rojo, 1999-NMSC-001, 119, 126 N.M. 438,971 P.2d 829
11 	(internal quotation marks and citation omitted). We "view[] the evidence in the light
12 most 	favorable 	to 	the 	guilty verdict, 	indulging 	all 	reasonable 	inferences 	and
13 	resolving all conflicts in the evidence in favor of the verdict." State v. Guerra, 2012-
14 NMSC-027, 110,284 P.3d 1076 (internal quotation marks and citation omitted). We
15 	"do[] not weigh the evidence or substitute [our] judgment for that of the fact[-]finder
16 as long as there is sufficient evidence to support the verdict." State v. Chavez, 2009-
17 NMSC-035, 111, 146 N.M. 434,211 P.3d 891 (internal quotation marks and citation
18 omitted). However, we will neither speculate nor "sanction a view that assumes the
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1n this memorandum opinion, we limit our recitation of the facts and law to
only that necessary to our disposition of the case.
2

1 worst about human nature" because doing so would di~regard "an essential message
2 	of the presumption of innocence." State v. Mariano R., 1997-NMCA-018, 17, 123
3 N.M. 	121, 934 P.2d 315. "The jury must have a sufficient evidentiary basis to
4 conclude that the defendant actually committed the criminal act he is accused of, not
5 just that he may have done it among a range of possibilities or that it cannot be 'ruled
6 out' among other possible explanations, or even that it is more likely than not." State
7 v. Consaul, 2014-NMSC-030, 170, 332 P.3d 850.
8 {4} 	We measure the State's evidence against the jury instructions that the district
9 court gave. State v. Arrendondo, 2012-NMSC-013, 1 18, 278 P.3d 517. The State
10 relied on a constructive possession theory, and the district court instructed the jury
11 	on constructive possession as follows:
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A person is in possession of methamphetamine when he knows
it is on his person or in his presence, and he exercises control over it.
Even if the substance is not in his physical presence, he is in
possession ifhe knows where it is, and he exercises control over it.
Two or more people can have possession of a substance at the
same time.
A person's presence in the vicinity of the substance or his
knowledge of the existence or the location of the substance[] is not, by
itself, possession.
18 "[C]onstructive possession is a legal fiction used to expand possession and include
19 those cases where the inference that there has been possession at one time is
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1 exceedingly strong." State v. Barber, 2004-NMSC-019, 122, 135 N.M. 621, 92 P.3d
2 633 (internal quotation marks and citation omitted).
3 	{5} 	The State's evidence of constructive possession suffices. The State presented
4 evidence that, when Defendant was incarcerated at the Metropolitan Detention
5 Center (MDC), corrections staff searched a cell and found methamphetamine in a
6 toothpaste cap on a shelf. Defendant was not present in the cell when a corrections
7 officer found the methamphetamine. The inmates in the unit where Defendant was
8 housed did not share cells; 	one inmate was assigned to each cell. Lieutenant
9 Abraham Gallardo, a supervisor at MDC, testified that he had assigned the cell where
10 the officers found the methamphetamine to Defendant. 2 Lieutenant Gallardo also
11 	testified that he was the person responsible for assigning inmates to their cells in the
12 part of the jail where Defendant was incarcerated and the only person authorized to
13 	move an inmate from one cell to another. One· of the corrections officers who
14 searched the cell testified that the MDC had safeguards in place to ensure that no
15 	inmate other than the assigned inmate entered each cell, including keeping the doors
16 to the cell locked and having a corrections officer observe all cells. This evidence,
17 considered together, 	supports a reasonable inference that Defendant knew the
18 methamphetamine was in the cell and had control of it. Cf State v. Hernandez, 1998-
2Defendant does not challenge the sufficiency of the evidence to prove that
Lieutenant Gallardo assigned him to the cell in the first place.
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1 NMCA-082, 19, 125 N.M. 661,964 P.2d 825 (recognizing that exclusive control of
2 a vehicle supports an inference of knowledge and control of a controlled substance
3 found inside). Substantial evidence supports Defendant's conviction.
4 II. 	Plain Error Did Not Occur
5 	{6} 	Defendant contends that the district court plainly erred by allowing Lieutenant
6 Gallardo to testify that documents called "cell reconciliation reports" confirmed that
7 Defendant was still assigned to the particular cell that he was initially assigned to at
8 the time the officer found the methamphetamine. Specifically, Defendant argues for
9 the first time on appeal that, under the best evidence rule, Rule 11-1002 NMRA, the
10 district court should not have allowed Lieutenant Gallardo to testify about the
11 	contents of the reports.
12 {7} 	"The plain-error rule 	. . . applies only if the alleged error affected the
13 	substantial rights of the accused. To find plain error, the Court must be convinced
14 that admission of the testimony constituted an injustice that created grave doubts
15 	concerning the validity of the verdict." State v. Montoya, 2015-NMSC-010, 1 46,
16 345 P.3d 1056 (internal quotation marks and citations omitted). We "examine the
17 alleged errors in the context of the testimony as a whole." Id. (internal quotation
18 marks and citation omitted).
19 {8} 	Assuming without deciding that the admission of the testimony at issue was
20 erroneous, we are not persuaded that its admission clears the high bar for plain error.
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1 The best evidence rule "is only applicable when a party seeks to prove the contents
2 	of a writing[,]" Gutierrez v. Albertsons, Inc., 1991-NMCA-135, 139, 113 N.M. 256,
3 824 P.2d 1058, so its application could only have excluded Lieutenant Gallardo's
4 testimony about the contents of the cell reconciliation reports. That testimony was
5 just one of several pieces of evidence that the State used to prove that Defendant
6 constructively possessed the methamphetamine. As discussed, the State introduced
7 testimony that Lieutenant Gallardo assigned Defendant to the cell where the officer
8 found the methamphetamine, 3 that only Lieutenant Gallardo could change cell
9 assignments, and that MDC took precautions to prevent inmates from gaining access
10 to cells not assigned to them. Lieutenant Gallardo' s testimony about the contents of
11 	the 	cell reconciliation reports 	arguably strengthened the 	State's case, 	but the
12 admission of that testimony does not give us grave doubt about the validity of the
13 	verdict 	when 	we 	view 	all 	of the 	evidence 	collectively. 	We 	therefore 	reject
14 Defendant's claim of plain error.
15 	CONCLUSION
16 {9} 	We affirm.
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Defendant does not contend that the admission of testimony that the cell was
initially assigned to him. His challenge is limited to the testimony about whether he
was still assigned to the cell at the time of the search.
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WE CONCUR:
Kristina Bogardus
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KRISTINA BOGARDUS, Judge
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MICHAEL BUSTAMANTE, Judge Pro Tempore
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