March 2, 2017- State of New Mexico v. Armis Bello, No. 34,165

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: [MARCH2, 2017

NO. 34,165

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ARMIS BELLO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge

Hector H. Balderas, Attomey General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attomey General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
ZAMORA, Judge.
{1} 	Defendant Armis Bello appeals from his convictions for trafficking cocaine by
distribution, contrary to NMSA 1978, Section 30-31-20(A)(2) (2006), and trafficking
cocaine by possession with intent to distribute, contrary to Section 30-31-20(A)(3).
Defendant argues that (1) his convictions violate the prohibition against double
jeopardy, (2) the State presented insufficient evidence to sustain his convictions, and
(3) he received ineffective assistance of counsel. We affirm in all respects.
BACKGROUND
{2} 	On November 11, 2009, an Albuquerque Police Department (APD) undercover
narcotics team conducted an undercover operation in an area of the city known to
police for narcotics-related activity. Detective David Jaramillo was the case agent for
the operation and was the undercover officer responsible for making the narcotic
purchases. Detective Jaramillo was dropped off in the targeted area, where he
observed a man standing at the corner of an intersection with no apparent purpose and
who appeared to be a “flagger” or a person that solicits sales of narcotics. The man
was later identified as Ralph Franco.
{3} 	Detective Jaramillo approached Franco and asked whether Franco was
“holding”—which is common street terminology for possessing narcotics for sale.

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After Detective Jaramillo indicated that he was looking for crack cocaine, Franco told
him that he did not have any but that he could take Detective Jaramillo to another
location to make a purchase. Detective Jaramillo followed Franco on foot to a parking
lot a few blocks away. Once they arrived at the parking lot, Franco identified
Defendant as the person selling the crack cocaine. Detective Jaramillo gave Franco a
$20 bill and watched as Franco approached Defendant and gave him the money. In
exchange, Defendant gave Franco an unknown substance. Franco returned to
Detective Jaramillo and handed him a clear cellophane package containing what
appeared to be a small rock of crack cocaine.
{4} 	According to Detective Jaramillo, the rock Franco gave him was very small,
“way under the value” of the money exchanged. Staying “in role” Detective Jaramillo
questioned Franco about being shortchanged, and then he approached Defendant
directly. Defendant brushed Detective Jaramillo’s complaint off and told him that the
small rock was all he was getting. Detective Jaramillo asked Defendant if he had any
more to sell, and Defendant indicated that he did. Detective Jaramillo bought a second
rock from Defendant for ten dollars. As he left the parking lot, Detective Jaramillo
gave his team the bust signal. Defendant, Franco, and a third subject identified only
as Aguilar, were arrested.

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{5} 	The two rocks Detective Jaramillo purchased were labeled and tagged into APD
evidence. Both substances were tested by the APD crime lab and were positively
identified as cocaine. Defendant was indicted for trafficking cocaine by distribution,
conspiracy to commit trafficking, trafficking cocaine by possession with intent to
distribute, and tampering with evidence. Defendant was convicted of trafficking
cocaine by distribution and trafficking cocaine by possession with intent to distribute.
DISCUSSION
Double Jeopardy
{6} 	Defendant contends that his convictions for trafficking cocaine by distribution
and possession of cocaine with intent to distribute violate the prohibition against
double jeopardy. “A double jeopardy challenge is a constitutional question of law[,]
which we review de novo.” State v. Swick (Swick II), 2012-NMSC-018, ¶ 10, 279 P.3d
747. “The Fifth Amendment of the United States Constitution[,] . . . made applicable
to New Mexico by the Fourteenth Amendment[,]” prohibits double jeopardy and
“functions in part to protect a criminal defendant against multiple punishments for the
same offense.” Id. (internal quotation marks and citation omitted). Double jeopardy
cases involving multiple punishments are classified as either double description cases,
“where the same conduct results in multiple convictions under different statutes[,]”

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or unit of prosecution cases, “where a defendant challenges multiple convictions under
the same statute.” Id.
{7} 	In the present case, both parties assert that Defendant’s convictions under
Subsection (A)(2) (distribution) and Subsection (A)(3) (possession with intent to
distribute) implicate a double description analysis. Defendant relies on this Court’s
decision in State v. Swick (Swick I), 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462,
aff’d in part, rev’d in part by Swick II, 2012-NMSC-018. In Swick I, the defendant
illegally entered the victims’ home, and once inside, beat and stabbed the victims
before taking $14 and the victims’ vehicle. Swick I, 2010-NMCA-098, ¶ 3. 	The
defendant was convicted of one count of second degree murder, two counts of
attempted murder, two counts of aggravated battery with a deadly weapon, two counts
of aggravated burglary by battery, one count of aggravated burglary with a deadly
weapon, two counts of armed robbery, two counts of conspiracy, and unlawful taking
of a motor vehicle. Id. ¶ 1.
{8} 	On appeal, the defendant argued, among other things, that his convictions for
aggravated burglary involving a deadly weapon, contrary to Subsection (B) of NMSA
1978, Section 30-16-4 (1963), and aggravated burglary involving battery, contrary to
Subsection (C) of the same statute, violated his double jeopardy protections. See Swick
I, 2010-NMCA-098, ¶ 26. This Court stated, “[w]hen convictions under separate

1There is a factual discrepancy between Swick I and Swick II that in turn
generates a discrepancy in the applicable subsection of Section 30-16-4 to the
defendant’s aggravated burglary (deadly weapon) conviction. Our analysis of Section
30-16-4(B) in Swick I was based on the defendant “arming himself with a knife once
inside” the victims’ home. Swick I, 2010-NMCA-098, ¶ 24; see § 30-16-4(B)
(“Aggravated burglary consists of the unauthorized entry . . . with intent to commit
any felony or theft therein and the person . . . : after entering, arms himself with a
deadly weapon[.]”). In Swick II, the Supreme Court’s analysis of Section 30-16-4(A)
was based on the defendant’s unauthorized entry into the victims’ home armed with
a knife. Swick II, 2012-NMSC-018, ¶¶ 35, 43; see § 30-16-4(A) (“Aggravated
burglary consists of the unauthorized entry . . . with intent to commit any felony or
theft therein and the person . . . : is armed with a deadly weapon[.]”). Nonetheless, the
pertinence of Swick I and Swick II is the double jeopardy analysis for more than one
conviction based on different subsections of one statute.
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subsections of a single statute are at issue, we apply the double[]description analysis.”
Id. ¶ 27. Applying a double description analysis to the facts of the case, we determined
that the convictions did not “offend double jeopardy principles.” Id. ¶¶ 28-29.
{9} 	In Swick II, the New Mexico Supreme Court granted certiorari to address a
number of issues, including whether the defendant’s convictions under Section 30-16-
4 violated double jeopardy.1 See Swick II, 2012-NMSC-018, ¶¶ 6, 43-44. The Supreme
Court applied a unit of prosecution analysis since the two convictions were under the
same statute. Id. ¶ 33 (stating that “[w]e apply a unit[]of[]prosecution analysis because
we are examining multiple convictions under the same statute”). The Supreme Court
held that the two aggravated burglary convictions did violate double jeopardy. Id. ¶
44. The Supreme Court did not offer an explanation or directly address the double
description analysis applied by this Court in Swick I. For its unit of prosecution

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standard the Supreme Court relied on State v. Gallegos, 2011-NMSC-027, ¶ 31, 149
N.M. 704, 254 P.3d 655. Gallegos involved three convictions under the same
subsection of the conspiracy statute. Id. Thus, it appears that double jeopardy claims
involving multiple convictions under different statutes are to be analyzed the same
way as double jeopardy claims based on multiple violations of different subsections
under one statute—using the unit of prosecution standard analysis. See Swick II, 2012-
NMSC-018, ¶ 10.
{10} 	We follow the approach taken by our Supreme Court in Swick II and apply a
unit of prosecution analysis to Defendant’s double jeopardy claim even though, like
the subsections of the burglary statute in Swick II, the subsections of the trafficking
statute have different elements. See Aguilera v. Palm Harbor Homes, Inc., 2002-
NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (recognizing that the Court of Appeals
is bound by Supreme Court precedent).
{11} 	“In unit of prosecution cases, the defendant is charged with multiple violations
of a single statute based upon acts that may or may not be considered a single course
of conduct.” State v. Sena, 2016-NMCA-062, ¶ 8, 376 P.3d 887. To determine the
correct unit of prosecution, we consider “whether the [L]egislature intended
punishment for the entire course of conduct or for each discrete act.” Swafford v.
State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. First, courts look to the

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language of the statute to determine if the Legislature has defined the unit of
prosecution. Swick II, 2012-NMSC-018, ¶ 33. If so, the inquiry is complete and
proceeds no further. Id. Where the unit of prosecution is not clearly defined in the
language of the statute, courts proceed to analyze “whether a defendant’s acts are
separated by sufficient indicia of distinctness to justify multiple punishments.”
Gallegos, 2011-NMSC-027, ¶ 31 (internal quotation marks and citation omitted).
{12} 	In this case, we do not reach the second part of the test because we conclude
that the Legislature defined the unit of prosecution to be one transfer of a controlled
substance. See Swick II, 2012-NMSC-018, ¶ 33 (concluding that for Section 30-16-
4(A) and (C) the Legislature defined the unit of prosecution to be an unlawful entry
with intent to commit a felony therein). Section 30-31-20(A) provides in pertinent
part: “[a]s used in the Controlled Substances Act, ‘traffic’ means the: (1) manufacture
of a controlled substance . . . ; (2) distribution, sale, barter or giving away of . . . a
controlled substance . . .; or (3) possession [of a controlled substance] with intent to
distribute.” Here, Defendant was convicted of one count each of trafficking by
distribution and trafficking by possession with intent to distribute. As used in the
Controlled Substances Act, to “ ‘distribute’ means to deliver” and to “ ‘deliver’ means
the actual, constructive or attempted transfer [of a controlled substance] from one
person to another.” NMSA 1978, § 30-31-2(G), (J) (2009).

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{13} 	In State v. Borja-Guzman, this Court noted that the “various means of
trafficking and the broad definition of deliver evinces a legislative intent to authorize
prosecution and punishment for each separate transfer of a controlled substance.”
1996-NMCA-025, ¶ 13, 121 N.M. 401, 912 P.2d 277. In Borja-Guzman, the defendant
gave undercover agents a sample of methamphetamine and a sample of heroin. Id. ¶
2. Approximately four hours later, the defendant met undercover agents in the same
location and sold them quantities of the same substances. Id. ¶¶ 2-3. The defendant
was convicted of multiple trafficking offenses. Id. ¶ 4. He challenged the convictions
on double jeopardy grounds, arguing that the distribution of a sample of a controlled
substance and the subsequent sale of the same substance at the same place and to the
same person or persons, constituted only one transfer. Id. ¶ 14. This Court rejected
that argument holding that “the [L]egislature clearly intended, in its enactment of
Section 30-31-20 criminalizing drug trafficking, to authorize separate prosecution and
punishment for each individual transfer or delivery under the circumstances where the
transfer is not contemporaneous.” Id. ¶ 26.
{14} 	In the present case, Defendant’s convictions arose from two separate transfers
of a controlled substance. The first transfer occurred when Detective Jaramillo
purchased the first rock cocaine from Defendant through Franco. The second transfer
occurred moments later when Detective Jaramillo purchased the second rock cocaine

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from Defendant directly. While the two sales occurred within a short period of time,
they did not occur contemporaneously and fall within the Legislature’s authorization
for separate punishment. See id.
{15} 	Defendant argues that the two purchases were part of one ongoing transaction
since the second purchase would not have occurred, but for Detective Jaramillo’s
dissatisfaction with the first purchase. We disagree. Section 30-31-20(A)(2) defines
the unit of prosecution as one controlled substance transfer. Here, there were two
distinct exchanges between Defendant and Detective Jaramillo. In each exchange,
Defendant transferred a distinct quantity of cocaine to Detective Jaramillo in exchange
for a distinct sum of money. The reason for the second purchase is not germane to our
analysis. We conclude that Defendant’s convictions under Section 30-31-20(A)(2) and
(3) do not violate double jeopardy.
Sufficiency of the Evidence
{16} 	Defendant challenges the sufficiency of the evidence to support both trafficking
convictions. Defendant asserts that possession of cocaine is a required element of both
trafficking offenses with which he is charged, and he claims that the evidence was
insufficient 	to 	establish 	possession 	because 	other 	than 	Detective 	Jaramillo’s
testimony, the State did not present any evidence that he possessed cocaine. We are
unpersuaded.

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{17} 	“The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Torrez, 2013-NMSC-034, ¶ 40, 305 P.3d 944 (internal quotation marks and citation
omitted). Our Supreme Court has expressly established a two-step process for
applying this test. State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. First we
must “draw every reasonable inference in favor of the jury’s verdict.” Id. Then we
“evaluate whether the evidence, so viewed, supports the verdict beyond a reasonable
doubt.” Id.
{18} 	In order to find Defendant guilty of trafficking cocaine by possession with
intent to distribute, the State had to prove beyond a reasonable doubt that on or about
November 11, 2009, Defendant had cocaine in his possession, knowing it was
cocaine, or believing it to be some drug or other substance the possession of which is
regulated or prohibited by law, and that Defendant intended to transfer it to another.
With regard to this charge, Detective Jaramillo testified that Franco agreed to take him
to a location where he could purchase crack cocaine. Franco identified Defendant as
the person selling the crack cocaine. Detective Jaramillo gave Franco a $20 bill and
watched as Defendant removed an unknown substance from his mouth and gave it to
Franco in exchange for the buy money. Franco returned and gave Detective Jaramillo

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a package containing a small rock, which later tested positive as cocaine. From this
testimony, a jury could reasonably infer that the unknown substance Defendant gave
to Franco in exchange for the buy money was the same rock of cocaine that Franco
gave to Detective Jaramillo. In other words, a jury could reasonably infer that
Defendant was in possession of the first rock of cocaine and intended to transfer it to
Detective Jaramillo through Franco.
{19} 	The jury instruction on trafficking by distribution provided that, in order to find
Defendant guilty of trafficking cocaine by distribution, the State had to prove beyond
a reasonable doubt that on or about November 11, 2009, Defendant transferred
cocaine to another, knowing that it was cocaine, or believing it to be some drug or
other substance the possession of which is regulated or prohibited by law. Detective
Jaramillo testified that after Defendant brushed off his complaints about the first
purchase, Detective Jaramillo asked if Defendant had more to sell, and Defendant
confirmed that he did. Defendant sold Detective Jaramillo a second rock for $10,
removing the package from his mouth, exchanging it for a $20 bill and giving
Detective Jaramillo $10 in change. Based on this testimony, a jury could reasonably
infer that Defendant transferred cocaine directly to Detective Jaramillo.

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{20} 	Drawing all reasonable inferences from the evidence in favor of the verdict, as
we must, we conclude that the evidence is sufficient to support Defendant’s
convictions for trafficking by distribution and trafficking with intent to distribute.
Ineffective Assistance of Counsel
{21} 	Defendant asserts that he received ineffective assistance of counsel because his
attorney failed to call key defense witnesses. “We review claims of ineffective
assistance of counsel de novo.” State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M.
719, 204 P.3d 44.
{22} 	“The Sixth Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, guarantees . . . the right to the effective
assistance of counsel.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179,
21 P.3d 1032 (internal quotation marks and citation omitted). “When an ineffective
assistance claim is first raised on direct appeal, [the appellate courts] evaluate the facts
that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54
P.3d 61. “A prima facie case of ineffective assistance is made by showing that defense
counsel’s performance fell below the standard of a reasonably competent attorney and,
due to the deficient performance, the defense was prejudiced.” Patterson, 2001-
NMSC-013, ¶ 17 (internal quotation marks and citation omitted). “A prima facie case
for ineffective assistance of counsel is not made if there is a plausible, rational strategy

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or tactic to explain the counsel’s conduct.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26,
130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted).
{23} 	As to the first prong, “[d]efense counsel’s performance is deficient if it falls
below an objective standard of reasonableness[,]” usually judged as an action contrary
to “that of a reasonably competent attorney.” Dylan J., 2009-NMCA-027, ¶ 37. Our
review of counsel’s performance is “highly deferential” in that counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. (internal quotation marks and
citation omitted). Therefore, a defendant “must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.”
State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (internal
quotation marks and citation omitted). “If there is a plausible, rational strategy or
tactic to explain counsel’s conduct, a prima facie case for ineffective assistance is not
made.” Dylan J., 2009-NMCA-027, ¶ 39.
{24} 	As to the second prong, “[a] defense is prejudiced if, as a result of the deficient
performance, there was a reasonable probability that . . . the result of the trial would
have been different.” Id. ¶ 38 (omission in original) (internal quotation marks and
citation omitted). “A reasonable probability is one that is sufficient to undermine
confidence in the outcome.” Id. (internal quotation marks and citation omitted). The

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deficient performance “must represent so serious a failure of the adversarial process
that it undermines judicial confidence in the accuracy and reliability of the outcome.”
Id. (internal quotation marks and citation omitted).
{25} 	Defendant claims ineffective assistance of counsel on the grounds that his
attorney did not call Franco and Aguilar as witnesses at trial. Defendant asserts that
the men were necessary defense witnesses whose testimony would likely have
exculpated him. However, Defendant does not point to any facts in the record that
support this claim. Thus, Defendant has not made a prima facie showing of ineffective
assistance of counsel. However, “this decision does not preclude [the d]efendant from
pursuing habeas corpus proceedings on this issue should he be able to garner evidence
to support his claims.” State v. Bernal, 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146
P.3d 289.
CONCLUSION
{26} 	For the foregoing reasons, Defendant’s convictions are affirmed.
{27} 	IT IS SO ORDERED.
M. MONICA ZAMORA, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

STEPHEN G. FRENCH, Judge

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