April 6, 2020- State of New Mexico v. Patrick Otero, No. A-1-CA-37929

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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-37929	4
PATRICK OTERO,	5
Defendant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY	7
Albert J. Mitchell, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Margaret J. Crabb, Assistant Attorney General	11
Albuquerque, NM	12
for Appellant	13
Aragon Law Office	14
Brett Phelphs	15
Las Vegas, NM	16
for Appellee	17
MEMORANDUM OPINION	18
VANZI, Judge.	19
{1} 	The State appeals the dismissal of one count of a criminal information charging	20
possession of methamphetamine based upon residue on a spoon found in Defendant’s	21
Court of Appeals of New Mexico
Filed 4/6/2020 9:32 AM

1The syringes were apparently not tested for the presence of any residue of
narcotics. [RP 133]
2
car following a traffic stop. [RP 124] This Court issued a notice of proposed summary	1
disposition, proposing to affirm. [CN 3-4] The State has filed a memorandum in	2
opposition to that proposed disposition. Having duly considered that memorandum,	3
we remain unpersuaded and affirm.	4
{2} 	This Court’s proposed disposition, like the order on appeal, relied upon State	5
v. Reed, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113, in which a conviction for	6
possession was reversed on the basis that the prosecution could not establish that the	7
defendant was aware of a residue of cocaine on a plastic wrapper. Id. ¶ 16. In	8
proposing to affirm, this Court relied upon the district court’s findings that there was	9
no evidence to establish how or when the methamphetamine residue “came to be on	10
the spoon,” we noted that there appeared to be no basis to find that Defendant was	11
aware of the invisible residue and also that the State had asserted no such basis in its	12
written response to the dismissal motion. [CN 3; RP 79-89]	13
{3} 	In its memorandum in opposition to summary affirmance, the State points out	14
that, unlike Reed, this case involves both residue of a contraband and paraphernalia,	15
because Defendant was also in possession of syringes1 at the time of his arrest. [MIO	16
3-4] Thus, the State argues that the present case includes circumstantial evidence of	17

3
Defendant’s intent because he was in possession of paraphernalia. [Id.] For support,	1
the State cites State v. Wood, 1994-NMCA-060, ¶ 14, 117 N.M. 682, 875 P.2d 1113,	2
in which this Court affirmed a conviction for possession based upon a residue of	3
cocaine detected in syringes that were in the defendant’s pants pocket. In doing so, we	4
distinguished other cases in which trace amounts of drugs were found in plastic bags	5
and mixed in with pocket lint. Id.	6
{4} 	We believe that the spoon at issue in the present case is more similar to the	7
plastic wrapper at issue in Reed and the bags and lint at issue in Wood since all of	8
those objects, though tainted with an invisible residue of contraband, appear innocent	9
to the naked eye. Indeed, as the district court noted below, the cocaine at issue in Reed	10
was actually visible upon close inspection–a fact not present in this case. [RP 127] We	11
also note that in Wood, the tainted items were found on the defendant’s person, unlike	12
the spoon found in Defendant’s car in this case. Id. ¶ 2.	13
{5} 	The fact that Defendant was also in possession of syringes does help to	14
establish Defendant’s likely familiarity with injectable drugs, but does not establish	15
that he knew there was a residue of narcotics on the spoon in his car. There appears	16
to be no available evidence to establish how recently the residue “came to be on the	17
spoon.” [RP 127] See State v. Maes, 2007-NMCA-089, ¶ 17, 142 N.M. 276, 164 P.3d	18

4
975 (noting that a “water-methamphetamine solution had dried to a white, granular	1
residue, a circumstance suggesting that the drugs had been mixed into a solution and	2
injected sometime in the past”). 	It is true that our review for sufficient evidence	3
encompasses both direct and circumstantial evidence. Wood, 1994-NMCA-060, ¶ 13.	4
Nonetheless, the evidence required to establish possession must provide more than	5
mere speculation of Defendant’s knowledge. Based upon the facts asserted by the	6
State, we are not persuaded that the available evidence is sufficient “to support	7
inferences of knowledge and control to the level of confidence required by proof	8
beyond a reasonable doubt.” Maes, 2007-NMCA-089, ¶ 19.	9
{6} 	Accordingly, for the reasons stated here and in our notice of proposed summary	10
disposition, we affirm the order of the district court.	11
{7} 	IT IS SO ORDERED.	12
13
LINDA M. VANZI, Judge	14
WE CONCUR:	15
16
JACQUELINE R. MEDINA, Judge	17
18
MEGAN P. DUFFY, Judge	19