May 20, 2019- State of New Mexico v. Javier Ornelas, No. A-1-CA-37516

OCR transcription for search; preserved printed pages are authoritative

Court of Appeals of New Mexico
Filed 5/20/2019 9:33 AM

2| STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

Alv. No. A-1-CA-3

5] JAVIER ORNELAS,

6 Defendant-Appellant.

9|| Hector H. Balderas, Attorney General
10} Santa Fe, NM

I1}for Appellee

12} Bennett J. Bauer, Chief Public Defender

13] William A. O’Connell, Assistant Appellate Defender
141 Santa Fe, NM

15||for Appellant

16 -MEMORANDUM OPINION |

17|| VANZI, Judge.

18]; Defendant appeals his convictions for possession of cocaine with intent to

19} distribute, possession of methamphetamine, possession of marijuana, and resisting or

20||evading an officer. We issued a notice of proposed summary disposition proposing

21\\to affirm, and Defendant has responded with a timely memorandum in opposition.

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initial proposed disposition was incorrect. We therefore affirm.

23} Defendant continues to argue that the district court erred in denying his motion
to suppress. Specifically, Defend:
to suppress the evidence seized after the officer obtained a search warrant containing

incorrect and inconsistent information concerning the vehicle to be searched. [MIO

supports a search warrant.” State v. Granville, 2006-NMCA-098, ¥ 9, 140 N.M. 345,
142 P.3d 933; see State v. Steinzig, 1999-NMCA-107, J 15, 127 N.M. 752, 987 P.2d
409 (noting that legal sufficiency of the contents of an affidavit is a question of law
we review de novo).
3} Based on the limited information available in the record, we understand that
the affidavit for search warrant contained two different descriptions of the subject
vehicle. In the body of the affidavit, the vehicle is deseribed as a:

Red in color Mercury 4 Door. Damage to the right rear window which

has been broken out and covered with card board box material and held

in place with tape. This vehicle has a VIN number of

ZMELM75 W8VX740202 and bears license plate number GPN 710 out

of NM.
[RP 75; MIO 3] However, the search warrant affidavit also contains a description of

re 79s

the vehicle to be searched as a “2006 Black Mercury 4 door SUV” with “Texas Tags

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BCJ729”
warrant affidavit further states that the officer stopped a vehicle with Texas plates
BCJ6729. [DS 4; MIO 3]

(4; Defendant argues in his memorandum in opposition that the search warrant
affidavit described two obviously distinct vehicles and asserts that there was nothing

within the four corners of the affidavit to point to the correct choice. [MIO 4-5] }

its face to establish probable cause to search any vehicle. [MIO 4]

{5} Weaffirm the district court’s denial of the motion to suppress. We first reject
Defendant’s argument that probable cause was lacking because there was nothing in
the search warrant affidavit to indicate which of the two vehicles was intended. As
we stated in our notice of proposed summary disposition, the record in this case does
not contain a copy of either the affidavit for search warrant or the search warrant
itself, and we are therefore unable to review either document. See Rule 12-209(C)
NMRA (providing a mechanism by which the record on appeal may be
supplemented); State v. Jim, 1988-NMCA-092, § 3, 107 N.M. 779, 765 P.2d 195 (“It
is [the] defendant’s burden to bring up a record sufficient for review of the issues he

raises on appeal.”). Accordingly, we are unable to consider whether the search

warrant affidavit established probable cause to search the vehicle that the search

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as a whole. See State v. Williamson, 2009-NMSC-039, ¢ 20, 146 N.M. 488, 212 P.3d

376 (stating that in reviewing affidavits in support of search warrants the appellate

court considers the affidavit as a whole); see also State v. Gurule, 2013-NMSC-025,
4 14, 303 P.3d 838 (stating that probable cause determinations are not subject to

bright line rules and must be based on an assessment of various probabilities in a
given factual context); State v. Alderete, 1977-NMCA-130, 73, 91 N.M. 373, 574

P.2d 592 (declining to consider issues relating to the defendant’s challenge to a
search where, although the district court had considered the search warrant affidavit
and the search warrant, those items were not provided to the appellate court).

6} Further, to the extent Defendant argues that the bare fact that the search warrant
affidavit contained two apparently contradictory descriptions of the property to be
searched renders the affidavit incapable of supporting probable cause as a matter of
law, we disagree, as Defendant has cited to no authority in support of this proposition.
See In re Adoption of Doe, 1984-NMSC-024, {| 2, 100 N.M. 764, 676 P:2d 1329
(holding where a party cites no authority to support an argument, we may assume no
such authority exists). [DS 6]

7; Defendant next continues to argue that the district court erred in denying his

motion to suppress based on the failure to preserve evidence collected from his

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issue are that, after stopping Defendant, police discovered drugs, identifications
belonging to others, and jewelry in Defendant’s vehicle. [MIO 7-8] Police listed these
items in the affidavi
jewelry were not listed among the items of evidence disclosed by the State to
Defendant. [MIO 6]

8} We review the district court’s decision to gre
evidence under an abuse of discretion standard. See State v. Redd, 2013-NMCA-089,
q 18, 308 P.3d 1000. “An abuse of discretion arises when the evidentiary ruling is
clearly contrary to logic and the facts and circumstances of the case.” State v.
Downey, 2008-NMSC-061, 7 24, 145 N.M. 232, 195 P.3d 1244 (internal quotation |
marks and citation omitted).

{93 Defendant first argues that the district court erred in applying the standard
articulated in State v. Ware, 1994-NMSC-091, ff 4, 25-26, 118 N.M. 319, 881 P.2d
679 (setting out a two-part due process test when the evidence was never gathered in
the first place). [MIO 9] Defendant argues that the evidence in question was in fact

collected but then lost by police, and therefore, the standard set forth in State v.

Chouinard, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680 applies. See id. { 16

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fasting ou
(oelluiE vu
violates the due process rights of a criminal defendant).

{10} However, under either standard, a defendant is required to show that the

missing evidence is material. See i d. (examining whether (1) the st
or intentional ly deprived the defendant of evidence, (2) the lost or destroyed evidence
is material, and (3) the defendant suffered prejudice); see also Ware,

atone £.:°1-A1
© Stale raliea

1994-NMSC-091, § 14 (stating as a threshold matter the evidence that the
to gather from the crime scene must be material to the defendant’s defense).
a1} In our notice of proposed summary disposition, we proposed to reject this |
assertion of error because the jewelry and identifications did not appear material to
the charges for which Defendant was tried and convicted. In his memorandum in
opposition, Defendant argues that the jewelry and identifications were material to the
trafficking charge because they are relevant to his intent and reason for possessing the
drugs, and they were circumstantial evidence of drug-dealing. [MIO 9]

4123 “Whether evidence is material depends on if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” State v. Fero, 1988-NMSC-053, { 10, 107

N.M. 369, 758 P.2d 783 (internal quotation marks and citation omitted). We continue

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in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, § 26, 128

Defendant’s car is not relevant to whether Defendant trafficked methamphetamine. |

However, to the extent that this evidence was circumstantial evidence of drug dealing,

of this evidence at trial. State v. Jacobs, 2000-NMSC-026, § 46, 129 N.M. 448, 10
P.3d 127 (“Defendant’s assertion of the possibility of prejudice, without more, is
insufficient to establish actual prejudice. y C Chouinard, 1981-N
(requiring a showing that the defendant suffered prejudice from the state’s loss or
destruction of evidence).

{13} Finally, Defendant argues that the evidence was insufficient to support his
conviction for trafficking and that he should only have been convicted on the lesser
included offense of possession of a controlled substance. [MIO 11-13] “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.. Duran,
2006-NMSC-035, J 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and
citation omitted). We view the evidence “in the light most favorable to the guilty

verdict, indulging all reasonable inferences and resolving all conflicts in the evidence:

™ rr a KTR

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998 P.2d 176. “We will not substitute our judgment for that of the fact[-]finder, nor
will we reweigh the evidence.” State v. Trujillo, 2012-NMCA-092, 7 5, 287 P.3d 344. |

414} In order to convict Defendant of trafficking a controlled substance, the State

possession, that Defendant knew it was cocaine or believed it to be cocaine, and that} -
Defendant intended to transfer it to another. [RP 212] See State v. Smith,
, 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.”).

15} Defendant specifically challenges the sufficiency of the evidence to show that |
he possessed the cocaine with the intent to distribute. On this issue, the evidence at
trial established that police searched Defendant’s car and discovered a black
backpack containing seven bags of a white powdery substance, later identified by the
state crime lab analyst as cocaine. [DS 3, 7] The crime lab analyst testified that the
amount of cocaine recovered was approximately two grams. [DS 7] Deputy
MsCasland testified that, based on his training and experience, the amount of cocaine |
recovered was more than was consistent with personal use. [RP 154] Moreover,

Deputy MsCasland a testified that the fact that the cocaine was packaged individually

indicated to him that it was packaged for sale and not for personal use. [RP 154-155]

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q Thia avida
{16} nis eviaenc

cocaine. See State v. Rael-Gallegos, 2013-NMCA-092, {¢ 30, 308 P.3d 1016]

(recognizing that an officer may testify as an expert and offer his or her opinion as to

1992-NMCA-014, 79, 113 N.M. 538, 828 P.2d 971 (stating that intent to distribute
may be inferred where the amount of the controlled substance possessed is

inconsistent with personal use and that intent to distribute a controlled substance m may
be inferred by surrounding facts and circumstances including the manner of
packaging of the controlled substance).

117} For these reasons, we affirm.

18} ITISSO ORDERED.

Lined. ang

LINDA/ M. YAN Zi, Judge

WE CONCUR:

Qi Varga

JULIE J. VARGAS, Fudge

WY AL \ Aff
[f v

MEGAN P. DUFFY, J