July 20, 2022- State of New Mexico v. Florencio K. Moncayo, No. A-1-CA-37911

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: JULY 20, 2022	3
No. A-1-CA-37911	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
FLORENCIO K. MONCAYO,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	10
Drew D. Tatum, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
John J. Woykovsky, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Charles D. Agoos, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 7/20/2022 10:01 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Florencio K. Moncayo appeals his convictions for possession of a	3
controlled substance and possession of drug paraphernalia. He challenges the	4
sufficiency of the evidence to support his conviction for possession of a controlled	5
substance, claiming that the presence of a residue, which cannot be measured or	6
used, is insufficient either to establish possession of a controlled substance, or to	7
establish Defendant’s knowledge that the residue was a controlled substance.	8
Defendant also contends that his convictions for both possession of a controlled	9
substance and possession of drug paraphernalia violate double jeopardy. Finding no	10
merit in Defendant’s claims, we affirm.	11
BACKGROUND	12
{2} 	In the early morning hours on January 21, 2018, police responded to a report	13
that someone was “trying to kick the door in” at an apartment. The officers	14
encountered Defendant at the scene, apparently agitated and yelling loudly. After	15
placing Defendant under arrest for disorderly conduct, the officers found a clear	16
glass pipe containing a white crystalline residue in Defendant’s left front pocket.	17
The 	substance 	in 	the 	pipe 	was 	subsequently 	tested 	and 	identified 	as	18
methamphetamine. The glass pipe was admitted into evidence as a state’s exhibit.	19
Following a jury trial, Defendant was found guilty of both possession of a controlled	20

2
substance (methamphetamine), a fourth degree felony under NMSA 1978, Section	1
30-31-23(A), (E) (2011, as amended 2021), and possession of drug paraphernalia,	2
then a misdemeanor under NMSA 1978, Section 30-31-25.1 (2001, as amended	3
2022).1
4
DISCUSSION	5
I. 	Sufficiency of the Evidence: Possession of a Controlled Substance	6
{3} 	We first consider Defendant’s challenge to the sufficiency of the evidence to	7
support his conviction for possession of a controlled substance. To convict a	8
defendant of possession of a controlled substance both possession and knowledge of	9
possession of a controlled substance must be established. Section 30-31-23(A); UJI	10
14-3102 NMRA. In this case, the jury was instructed that to find Defendant guilty	11
they must find beyond a reasonable doubt: (1) “[D]efendant had methamphetamine	12
in his possession”; (2) “[D]efendant knew it was methamphetamine”; and (3) “This	13
happened in New Mexico on or about January 21, 2018.” We measure the	14
sufficiency of the evidence against the law as stated in the jury instructions.	15
Goodman v. OS Rest. Servs., LLC, 2020-NMCA-019, ¶ 16, 461 P.3d 906 (“[J]ury	16
instructions become the law of the case against which sufficiency of the evidence is	17
1Because the law in effect at the time an offense is committed is controlling,
this opinion cites to and relies upon the 2018 version of each statute that applied. All
citations throughout this opinion to Section 30-31-23 and Section 30-31-25.1 are to
the 2018 version, unless otherwise indicated. State v. Figueroa, 2020-NMCA-007,
¶ 8, 457 P.3d 983.

3
to be measured.” (internal quotation marks and citation omitted)). 	Defendant	1
challenges the sufficiency of the evidence to establish both the element of possession	2
and the element of knowledge.	3
A. 	Standard of Review	4
{4} 	When reviewing a sufficiency of the evidence challenge, we must determine	5
“whether substantial evidence of either a direct or circumstantial nature exists to	6
support a verdict of guilt beyond a reasonable doubt with respect to every element	7
essential to a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126,	8
753 P.2d 1314. “A reviewing court must view the evidence in the light most	9
favorable to the state, resolving all conflicts therein and indulging all permissible	10
inferences therefrom in favor of the verdict.” Id. “This [C]ourt does not weigh the	11
evidence and may not substitute its judgment for that of the fact[-]finder so long as	12
there is sufficient evidence to support the verdict.” Id. When a sufficiency of the	13
evidence claim requires construction of a statute, as Defendant’s claim does here,	14
our review is de novo. See State v. Maldonado, 2005-NMCA-072, ¶ 9, 137 N.M.	15
699, 114 P.3d 379 (“[R]ecognizing that review of the sufficiency of the evidence	16
supporting a conviction may require a court to engage in statutory construction [and	17
that such review is de novo].”).	18

4
B. 	There Is No Error in This Court’s Decisions Holding That a Trace	1
Amount of a Controlled Substance Is Sufficient to Support a Conviction	2
for Possession nor Have Those Decisions Become “So Unworkable as to	3
Be Intolerable”	4
{5} 	Defendant challenges the sufficiency of evidence of a trace amount of a	5
controlled substance found inside a glass pipe to support a conviction for possession	6
of methamphetamine. Defendant acknowledges this Court’s longstanding precedent	7
holding that our Legislature intended possession of any amount of a controlled	8
substance to violate Section 30-31-23(E), so long as the substance can be identified.	9
See State v. Grijalva, 1973-NMCA-061, ¶¶ 15, 17, 85 N.M. 127, 509 P.2d 894	10
(rejecting the claim that prior law required a useable amount of a narcotic or other	11
listed controlled substance and holding that “the mere possession of any amount of	12
the prohibited substance is enough to violate the statutory proscription.” (emphasis	13
added)); see also State v. Wood, 1994-NMCA-060, ¶ 9, 117 N.M. 682, 875 P.2d	14
1113 	(holding 	that 	Section 	30-31-23(D) 	(2010) 	(Subsection 	(E) 	in 	2018))	15
unambiguously criminalizes possession of “any clearly identifiable amount of a	16
controlled substance”).	17
{6} 	Defendant contends Grijalva and Wood were implicitly abrogated by our	18
Supreme Court’s decision in State v. Office of the Public Defender ex rel. Muqqddin,	19
2012-NMSC-029, 285 P.3d 622, or alternatively, Grijalva and Wood should be	20
overturned based on “the recent analytical modifications to statutory construction.”	21
Defendant alleges our Supreme Court adopted in Muqqddin. Defendant contends, in	22

5
the alternative, Wood and Grijalva should be overturned because these cases have	1
become “so unworkable as to be intolerable.”	2
{7} 	Defendant has a high bar to clear in seeking to overturn longstanding	3
precedent. Defendant must show an obvious error in a prior decision or a special	4
justification before we will depart from precedent. See Herrera v. Quality Pontiac,	5
2003-NMSC-018, ¶ 15, 134 N.M. 43, 73 P.3d 181 (listing the special justifications	6
that can support overturning precedent); see also State v. Radosevich, 2018-NMSC-	7
028, ¶ 21, 419 P.3d 176 (“We do not overturn precedent lightly, but where our	8
analysis convincingly demonstrates that a past decision is wrong, the Court has not	9
hesitated to overrule even recent precedent.” (internal quotation marks and citation	10
omitted)). A party asking this Court to overturn a decision must generally show	11
either obvious error or that (1) the decision “is so unworkable as to be intolerable”;	12
(2) reversing the decision would not “create an undue hardship” as a result of	13
reliance on the previous decision; (3) the law surrounding the prior decision has	14
“developed to such an extent as to leave the old rule no more than a remnant of	15
abandoned doctrine”; or (4) “the facts have changed in the interval from the old rule	16
to reconsideration so as to have robbed the old rule of justification.” Herrera, 2003-	17
NMSC-018, ¶ 15 (internal quotation marks and citation omitted).	18
{8} 	We address first Defendant’s claim that Wood and Grijalva were wrongly	19
decided in light of what Defendant claims is a sea change in statutory analysis	20

6
adopted by our Supreme Court in Muqqddin. Defendant argues that our Supreme	1
Court’s opinion in Muqqddin abrogates the plain meaning analysis employed by this	2
Court in Wood and Grijalva, requiring that our courts ignore the plain meaning of	3
the words and instead turn to an analysis of the policy underpinning the statute.	4
According to Defendant, this Court in Wood and Grijalva wrongly applied what	5
Defendant describes as the defunct plain meaning rule to conclude that the statutory	6
language was clear and unambiguous and, having so concluded, relied exclusively	7
on the language of the statute, overlooking what Defendant claims is legislative	8
intent to punish only possession of a useable or measureable amount of a controlled	9
substance. Defendant further contends that our possession of drug paraphernalia	10
statute (which, at the time of this offense, made possession of drug paraphernalia a	11
misdemeanor) was intended by the Legislature to be the proper statutory vehicle for	12
prosecuting possession of a residue of a controlled substance found inside an item	13
of drug paraphernalia.	14
{9} 	First, 	we 	are 	not 	persuaded 	by 	Defendant’s 	argument 	that 	Muqqddin	15
represents a change from the well-established principles of statutory construction	16
applied by this Court in Grijalva and Wood. Our Supreme Court, at the outset of its	17
opinion in Muqqddin, summarized the principles of statutory construction that the	18
Court went on to apply as follows: “Our primary goal is to ascertain and give effect	19
to the intent of the Legislature. In doing so, we examine the plain language of the	20

7
statute as well as the context in which it was promulgated, including the history of	1
the statute and the object and purpose the Legislature sought to accomplish.” 2012-	2
NMSC-029, ¶ 13 (internal quotation marks and citation omitted).	3
{10} 	Although acknowledging that policy must play a role, Muqqddin did not	4
abrogate the plain meaning rule. That rule provides that if a state statute is free from	5
ambiguity and the meaning of statutory language is plain, it must be applied as	6
written. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 2, 117 N.M. 346, 871	7
P.2d 1352. Our Supreme Court in Muqqddin adopted and applied the guidance on	8
statutory construction provided by the Court’s opinion in Helman, noting that	9
Helman refused to abrogate the plain meaning rule, instead holding that the rule	10
continues to apply where there is no ambiguity in a statute, but admonishing our	11
courts to “‘exercise caution in applying the plain meaning rule,’” being aware that a	12
seemingly clear phrase “‘may mask a host of reasons why a statute, apparently clear	13
and unambiguous on its face, may for one reason or another give rise to legitimate	14
(i.e., nonfrivolous) differences of opinion concerning the statute’s meaning.’”	15
Muqqddin, 2012-NMSC-029, ¶ 38 (quoting Helman, 1994-NMSC-023, ¶ 23).	16
Helman recommends that courts read the questioned phrase or word in the context	17
of other sections of the same statute, and look to the history of the statute to discern	18
the policy behind the words to be sure that the phrase is indeed unambiguous before	19
relying on the plain meaning rule. Importantly, neither Helman nor Muqqddin	20

8
challenge the central rule of statutory construction, a rule adopted by our Legislature	1
and acknowledged as central to statutory construction by our Supreme Court in	2
Muqqddin. “The text of a statute or rule is the primary, essential source of its	3
meaning.” NMSA 1978, § 12-2A-19 (1997).2
4
{11} 	Consistent with these principles of statutory construction, the Muqqddin Court	5
looked closely at the language of our burglary statute, NMSA 1978, § 30-16-3	6
(1971), which defines the crime of burglary, in relevant part, as “entry of any vehicle,	7
watercraft, aircraft, dwelling or other structure.” The Court criticized some earlier	8
plain-language constructions of the statute for focusing too narrowly on the ordinary	9
meaning of the word “vehicle” in isolation, without considering either the phrase as	10
a whole, or the meaning of the phrase in the context of the statute as a whole,	11
repeating the guidance in Helman to exercise caution in applying the plain meaning	12
rule. See Muqqddin, 2012-NMSC-029, ¶ 38. Looking to the language of the statute	13
as a whole, the Court found that the phrase “entry of any vehicle” did not clearly and	14
unambiguously resolve the question before the Court: whether entry into an isolated	15
2Indeed, four years after deciding Muqqddin, our Supreme Court in State v.
Holt, 2016-NMSC-011, ¶ 12, 368 P.3d 409, acknowledged that “[i]t is well-settled
that words in a statute take their ordinary meaning absent legislative intent to the
contrary” and even more recently endorsed the continued application of the plain
meaning rule in cases where the statutory language is unambiguous. See Leger v.
Leger, 2022-NMSC-007, ¶ 34, 503 P.3d 349 (“When the plain meaning of statutory
language is as straightforward as it is here, it is our obligation to uphold the statute
as written.”).

9
part of the vehicle like the gas tank or a wheelhouse, without entering the passenger	1
compartment or trunk, was the type of “entry of any vehicle” intended by the	2
Legislature to commit the crime of burglary. See id. ¶¶ 34-38.	3
{12} 	Having found the phrase at issue ambiguous, the Court then went on to explore	4
the policy the Legislature intended to serve, searching the history of both the	5
common law of burglary and the history of our burglary statute to assist in	6
deciphering the intent of the Legislature. Because the history of our burglary statute	7
revealed legislative intent to severely punish intrusion into private, enclosed spaces,	8
the Court concluded that the phrase “entry of any vehicle” was intended by the	9
Legislature to apply only when there was an intrusion into the private, enclosed areas	10
of a vehicle. The Court noted, as additional support for its understanding of	11
legislative intent, that the Legislature had adopted a statute—tampering with an	12
automobile—which made drilling into a gas tank a misdemeanor. See id. ¶¶ 45-46,	13
50-51. The Court concluded that it was unlikely the Legislature intended for the	14
burglary statute to supplant the tampering statute. See id. ¶ 51.	15
{13} 	We reject Defendant’s claim that Muqqddin abrogated the plain meaning rule.	16
To the contrary, Muqqddin itself applies the principles of statutory construction,	17
which have been longstanding in our jurisprudence; in a given statutory enactment,	18
begin with the words expressed by the Legislature. Determine whether the words are	19
clear as written, or if there is lurking ambiguity when the words are read in the	20

10
context of the phrase as a whole or the statute as a whole. If the words are clear and	1
the plain meaning unambiguous, apply the words as written. If there is ambiguity,	2
use the common law, the history of the legislation, and past precedent in the courts	3
to assist in determining legislative intent. Muqqddin reminds us that it is the	4
judiciary’s responsibility to interpret—not to rewrite—the laws it is called upon to	5
review. When the Legislature speaks plainly, we must apply the law as written.	6
When terms are ambiguous, we must conduct a search to discern legislative intent.	7
{14} 	Defendant next argues that even if Muqqddin did not abrogate the plain	8
meaning rule, Grijalva and Wood were wrongly decided. We understand Defendant	9
to 	claim 	that 	this 	Court 	misapplied 	the 	longstanding 	principles 	of 	statutory	10
construction reiterated in Muqqddin and arrived at a construction of our possession	11
of a controlled substance statute inconsistent with legislative intent. We therefore,	12
turn to this Court’s decisions in Wood and Grijalva to determine if there was obvious	13
error.	14
{15} 	First, as now directed by our Legislature in Section 12-2A-19 and by our	15
Supreme Court in Muqqddin, the Wood court began its analysis by looking to the	16
text of the statute. Wood, 1994-NMCA-060, ¶ 8. Section 30-31-23(A) states that “[i]t	17
is unlawful for a person intentionally to possess a controlled substance” (emphasis	18
added), and repeats the same language, again using the phrase possession of “a	19
controlled substance” and adding the phrase possession of “a narcotic,” in Section	20

11
30-31-23(D) (2010), the section making possession of methamphetamine a fourth	1
degree felony. Section 30-31-23(E). Before concluding that this language clearly	2
expresses legislative intent to punish as a felony possession of any identifiable	3
amount of a controlled substance listed in Section 30-31-23(E), this Court, as	4
Muqqddin directs, expanded its analysis to consider the language of Section 30-31-	5
23(E) in the context of the other sections of the statute. See Wood, 1994-NMCA-	6
060, ¶ 8. The Wood Court contrasted the Legislature’s choice in Section 30-31-23(B)	7
to adopt different penalties for possession of specific quantities of marijuana—	8
making, for example, possession of “one ounce or less of marijuana” a petty	9
misdemeanor—with the absence of specification of any amount in Subsections (D)	10
and (E) and then went on to construe Subsections (D) and (E) together. See Wood,	11
1994-NMCA-060, ¶ 8.	12
{16} 	Defendant argues that this Court mistakenly believed that the “any amount”	13
language of Section 30-31-23(D) was part of Subsection (E) when it concluded that	14
our Legislature intended to punish possession of “any amount” of methamphetamine	15
as a felony. We do not agree. This Court’s decisions in Grijalva and Wood are based	16
on the Court’s reading of Section 30-31-23(D), making possession of less dangerous	17
substances a misdemeanor crime, together with the exceptions set out in Subsection	18
(E) for those substances, including methamphetamine, which are to be punished as	19
a felony. We see no error in the Court’s analysis of the plain language of the phrase	20

12
“a controlled substance,” or “a narcotic drug,” without specifying the amount, to	1
convey the Legislature’s intent to criminalize the possession of “any clearly	2
identifiable amount of a controlled substance,” Wood, 1994-NMCA-060, ¶ 9,	3
whether that substance was a more dangerous substance listed in Section 30-31-	4
23(E), or one of the less dangerous substances included in Subsection (D).	5
{17} 	Defendant also has not convinced us that the result in Wood and Grijalva	6
conflicts with legislative policy concerning possession of a controlled substance that	7
the result is unreasonable or absurd, or that the result in Wood and Grijalva is “so	8
unworkable 	as 	to 	be 	intolerable.” 	Herrera, 	2003-NMSC-018, 	¶ 	15 	(internal	9
quotation marks and citation omitted); see State v. Davis, 2003-NMSC-022, ¶ 13,	10
134 N.M. 172, 74 P.3d 1064 (noting that statutes should be interpreted in accord	11
with their spirit and purpose, and not “in a manner that leads to absurd or	12
unreasonable results”). Defendant claims that the Legislature’s policy goal was to	13
prevent the use or trafficking of a controlled substance and that it is unreasonable,	14
given that policy goal, to criminalize possession of an amount that can neither be	15
used nor trafficked. Defendant’s argument fails to acknowledge the policy concerns	16
that support the Legislature’s enactment of an absolute ban on possession of any	17
amount of a dangerous substance. Making the possession of paraphernalia with a	18
residue of a dangerous substance a felony, so long as the individual has knowledge	19
of the nature of the substance, reasonably deters the possession of those substances,	20

13
whether the substance is possessed for personal use, manufacture or sale. Defendant	1
does not identify any permissible reason for possession of methamphetamine.	2
{18} 	Defendant’s claim that Wood and Grijalva are “so unworkable as to be	3
intolerable” relies on the ability of technology to detect increasingly small amounts	4
of a controlled substance, thereby, according to Defendant, subjecting virtually all	5
persons to prosecution for possession. This argument overlooks the additional	6
element required to convict for possession of a controlled substance, that an accused	7
person have knowledge that they have a controlled substance in their possession.	8
This requirement is not met by possession of an invisible amount on a common	9
object. Our Supreme Court’s decision in State v. Reed, rules out such a prosecution.	10
See 1998-NMSC-030, ¶ 16, 125 N.M. 552, 964 P.2d 113 (holding that evidence of	11
a quantity of cocaine on a cigarette wrapper, invisible to the naked eye, was not alone	12
sufficient to establish the element of knowledge of possession of a controlled	13
substance).	14
{19} 	We also do not agree with Defendant that the crime of possession of drug	15
paraphernalia is a lesser offense that was intended by the Legislature to apply in	16
place of Section 30-31-23 when there is an identifiable residue of a controlled	17
substance on paraphernalia and the individual knows that the substance is a	18
controlled substance. Defendant analogizes to the crime of tampering with a motor	19
vehicle by draining a gas tank or removing a wheel from a vehicle, which the	20

14
Muqqddin Court found the Legislature did not intend to be supplanted by the	1
burglary statute. 	See 	2012-NMSC-029, ¶ 51. In contrast, possession of drug	2
paraphernalia has remained a distinct crime after the decisions in Wood and Grijalva,	3
subject to separate prosecution and punishment. It was not supplanted by the crime	4
of possession of a controlled substance. Other than this imperfect analogy to	5
burglary and tampering with a motor vehicle, Defendant provides no support in the	6
history or purpose of the two statutes for his argument that the Legislature intended	7
to ignore possession of a residue of a controlled substance and punish only	8
possession of paraphernalia.	9
{20} 	We note as well that the Legislature has amended both the paraphernalia	10
statute and the possession statute since our decisions in Wood and Grijalva, without	11
amending the language construed by Wood and Grijalva or otherwise indicating its	12
disapproval of those decisions.3 We presume that the Legislature is aware of existing	13
law when it amends a statute. See Aguilera v. Bd. of Educ. of Hatch Valley Schs.,	14
2006-NMSC-015, ¶ 24, 139 N.M. 330, 132 P.3d 587. “In the absence of a clear	15
legislative directive to abandon existing law, we continue to apply it.” Id.	16
3 In its 2022 session, our Legislature decriminalized possession of drug
paraphernalia, reducing what was a misdemeanor to a penalty assessment. Section
30-31-25.1(C). We do not comment on this legislative change because the relevant
amendment to Section 30-31-25.1 was enacted after the commission of the offense
at issue in this case.

15
{21} 	As stated, we are not persuaded that Muqqddin rejects the plain meaning	1
approach to Section 30-31-23 applied by this Court in Wood and Grijalva. We	2
additionally conclude that Wood and Grijalva were not wrongly decided, nor has the	3
longstanding construction of Section 30-31-23 has become “so unworkable as to be	4
intolerable.” 	Defendant 	has 	not 	carried 	his 	burden 	of 	“convincingly	5
demonstrate[ing] that a past decision is wrong.” Radosevich, 2018-NMSC-028, ¶ 21	6
(internal quotation marks and citation omitted). In sum, we see no reason to depart	7
from precedent. See State v. Gonzales, 1990-NMCA-040, ¶ 30, 110 N.M. 218, 794	8
P.2d 361 (“Until we are faced with a case in which there is a reason to depart from	9
a precedent, we will continue to apply it.”). We are mindful that “the power to define	10
crimes is a legislative function.” State v. Moss, 1971-NMCA-117, ¶ 4, 83 N.M. 42,	11
487 P.2d 1347. This Court will not substitute its judgment for the Legislature’s.	12
II. 	Sufficiency of the Evidence of Defendant’s Knowledge of the Nature of	13
the Residue	14
{22} 	Defendant further contends that the evidence was insufficient to establish	15
Defendant’s knowledge that the residue was a controlled substance or a narcotic.	16
When reviewing a challenge to the sufficiency of the evidence, we must determine	17
“whether substantial evidence of either a direct or circumstantial nature exists to	18
support a verdict of guilt beyond a reasonable doubt with respect to every element	19
essential to a conviction.” Sutphin, 1988-NMSC-031, ¶ 21.	20

16
{23} 	As noted above, knowledge may fairly be disputed in situations where trace	1
amounts of controlled substances are at issue and there is no other evidence tending	2
to establish knowledge of the nature of the substance. See Reed, 1998-NMSC-030,	3
¶¶ 14-18 (holding that the there was insufficient evidence to prove knowledge where	4
the defendant possessed a wrapper bearing a trace amount of a controlled substance	5
that 	was 	not 	immediately 	apparent 	to 	the 	human 	eye, 	and 	where 	no 	other	6
corroborating 	evidence 	showing 	knowledge 	was 	presented). 	Circumstantial	7
evidence, however, such as possession of drug paraphernalia, may support a	8
reasonable inference of knowing possession of a controlled substance contained	9
therein. See id. ¶¶ 16-17 (acknowledging that trace amounts of controlled substances	10
found on drug paraphernalia may corroborate a defendant’s knowledge); Wood,	11
1994-NMCA-060, ¶¶ 13-14 (observing that knowledge, which is rarely susceptible	12
to direct proof, may be established by circumstantial evidence; and holding that	13
possession of drug paraphernalia is sufficient to give rise to a reasonable inference	14
of knowing possession of a trace amount of a controlled substance contained in the	15
paraphernalia).	16
{24} 	The 	State’s 	evidence 	conclusively 	established 	that 	Defendant 	was 	in	17
possession of a clear glass pipe containing the white crystalline residue that proved	18
to be methamphetamine. Defendant’s possession of a glass pipe in his pocket, with	19
a visible white residue inside the pipe, was sufficient to create a reasonable inference	20

17
that Defendant knew that the residue was a controlled substance. Although a glass	1
pipe can have other uses, this was not the sort of pipe used to smoke tobacco or other	2
legal substances.4 Its presence in Defendant’s pocket with a visible white residue	3
clinging to it was sufficient both to allow the jury to identify the pipe as drug	4
paraphernalia and to support a reasonable inference that Defendant knew that the	5
white substance inside it was a controlled substance. See generally NMSA 1978,	6
§ 30-31-2(V)(12)(a) (2017, amended 2021) (defining “drug paraphernalia” as	7
“materials of any kind that are used, intended for use or designed for use in . . .	8
ingesting, inhaling or otherwise introducing into the human body a controlled	9
substance” and specifically including glass pipes). Although Defendant argues that	10
the testimony was insufficient for the jury to find that the residue was clearly visible	11
to the naked eye, the pipe was introduced into evidence, allowing the jury to examine	12
the pipe and the residue. We, therefore, reject Defendant’s challenge to the	13
sufficiency of the evidence to support his conviction for possession of a controlled	14
substance.	15
4 See Conyers v. State, 164 So. 3d 73, 76-77 (Fla. Dist. Ct. App. 2015)
(describing the kind of glass pipe used in this case as “a short glass tube of a variety
that, over the last thirty years, has become known as a ‘pipe’ because it is used to
heat illegal drugs.”

18
III. 	Double Jeopardy	1
{25} 	Defendant contends that his convictions for possession of a controlled	2
substance and possession of drug paraphernalia based on unitary conduct violate	3
double jeopardy. “We review double jeopardy claims de novo.” State v. Garcia,	4
2009-NMCA-107, ¶ 8, 147 N.M. 150, 217 P.3d 1048.	5
{26} 	“Double 	jeopardy 	protects 	against 	multiple 	punishments 	for 	the 	same	6
offense.” State v. Silvas, 2015-NMSC-006, ¶ 8, 343 P.3d 616. “Cases [such as this]	7
involving violations of multiple statutes are ‘double-description’ cases.” Id. In	8
reviewing a double-description challenge where the conduct at issue is unitary, we	9
must determine if the Legislature intended multiple punishments. See Swafford v.	10
State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223 (“[T]he polestar guiding	11
courts is the [L]egislature’s intent to authorize multiple punishments for the same	12
offense.”).	13
{27} 	We look first to whether either statute tells us whether the Legislature intended	14
to create separately punishable offenses. See id. ¶ 8. Finding no such expression in	15
either the possession or drug paraphernalia statute, we proceed to compare the	16
elements of the two offenses to determine if each statute requires proof of an element	17
the other does not. See id. ¶¶ 9-21. In comparing the elements of the two offenses,	18
we look to the State’s theory of the case rather than considering the elements in the	19
abstract. See State v. Gutierrez, 2012-NMCA-095, ¶ 14, 286 P.3d 608 (explaining	20

19
that the modified Blockburger5 approach “applies when one of the statutes at issue	1
is written with many alternatives, or is vague or unspecific” and that where this is	2
true “a reviewing court should look at the legal theory of the offense that is charged[]	3
instead of looking at the statute in the abstract when comparing elements under	4
Blockburger.” (internal quotation marks and citation omitted)).	5
{28} 	Applying this test, we conclude that Defendant’s convictions required proof	6
of distinct elements: one required proof that Defendant knowingly possessed a	7
controlled substance (specifically, methamphetamine); and the other required proof	8
that Defendant possessed paraphernalia (specifically, a glass pipe), with specific	9
intent to use it. The fact that each crime requires proof of at least one different	10
element gives rise to a presumption that the Legislature intended to punish the	11
offenses separately. See Silvas, 2015-NMSC-006, ¶ 12 (“If one statute requires proof	12
of a fact that the other does not, then the Legislature is presumed to have intended a	13
separate 	punishment 	for 	each 	statute 	without 	offending 	principles 	of 	double	14
jeopardy.”).	15
{29} 	We understand Defendant to contend that the elements of the offenses should	16
be deemed coextensive, because the same evidence—Defendant’s possession of a	17
pipe 	containing 	methamphetamine—supplies 	the 	basis 	for 	both 	convictions.	18
5Blockburger v. United States, 284 U.S. 299 (1932).

20
However, the fact that proof of one offense may also provide direct or indirect proof	1
of another does not pose a double jeopardy problem. This overlap in evidence is	2
common where the conduct is unitary. Even where conduct is unitary, however,	3
further analysis of legislative intent is required to determine if the Legislature	4
intended to punish the conduct under two separate statutes. Insofar as each offense	5
required proof of one or more elements that the other did not (e.g.) knowing	6
possession of methamphetamine versus possession of paraphernalia with specific	7
intent), neither offense is subsumed within the other, and the modified Blockburger	8
test gives rise to a presumption that the Legislature intended the offenses to be	9
separately punished. See State v. Almeida, 2008-NMCA-068, ¶ 10, 144 N.M. 235,	10
185 P.3d 1085.	11
{30} 	That presumption, however, “is not conclusive; it may be overcome by other	12
indicia of legislative intent.” Id. ¶ 11 (internal quotation marks and citation omitted).	13
This Court in Almeida analyzed the factors that weigh in favor of and against	14
separate punishments in the context of the two offenses at issue here. See id. ¶¶ 14-	15
16. We do not repeat that analysis here but instead adopt the reasoning of this Court	16
in Almeida. This Court held in Almeida that, when the drug paraphernalia was a	17
container used to hold the narcotic in Defendant’s possession, the Legislature did	18
not intend to punish these two crimes, which almost always occur together as	19
separate offenses. Id. ¶ 18. This Court distinguished “the need for a container,”	20

21
something “inherent in the act of possessing [a small personal supply of a] controlled	1
substance,” from possession of other sorts of paraphernalia used to ingest drugs and	2
that are not an inherent part of possessing the drug. Id. ¶¶ 18-19.	3
{31} 	This case falls squarely into the category of possession of paraphernalia that	4
is usually associated with drug use but is not a container inherent in the act of	5
possession. We agree with this Court’s assessment in Alameida “that ordinarily, i.e.,	6
when the paraphernalia at issue are items usually associated with drugs, the statutes	7
that punish the possession of controlled substances and the possession of drug	8
paraphernalia are intended to punish distinct wrongs.” Id. ¶ 20 (noting that “two	9
punishments would appear to be permitted when . . . the drugs are found inside the	10
pipe or inside the syringe”). We conclude that when the drug paraphernalia is used	11
to ingest drugs, rather than solely as a container to hold drugs, our Legislature	12
intended separate punishments.	13
{32} 	In summary, after comparing the elements of the offenses and considering	14
other indicia of legislative intent, we conclude that the presumption of separate	15
punishments stands. Although Defendant invokes the rule of lenity, this is not a case	16
in which insurmountable ambiguity exists. We therefore deem the rule inapplicable,	17
and we reject Defendant’s double jeopardy challenge.	18
CONCLUSION	19
{33} 	For the foregoing reasons, we affirm.	20

22
{34} 	IT IS SO ORDERED.	1
__________________________________	2
JANE B. YOHALEM, Judge	3
WE CONCUR:	4
________________________________	5
J. MILES HANISEE, Chief Judge	6
________________________________	7
JACQUELINE R. MEDINA, Judge	8