May 21, 2020- State of New Mexico v. Zane Truog, No. A-1-CA-37207

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37207	4
ZANE TRUOG,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY	7
Jane Shuler Gray, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Allison H. Jaramillo, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
MEDINA, Judge.	18
{1} 	Defendant Zane Truog entered a conditional no contest plea to felony	19
possession of a controlled substance (methamphetamine), in violation of NMSA	20
1978, Section 30-31-23(E) (2011, amended 2019), reserving the issue of whether the	21
district court erred in denying his motion to dismiss. We affirm.	22
Court of Appeals of New Mexico
Filed 5/21/2020 11:31 AM

2
BACKGROUND	1
{2} 	The 	following 	facts 	are 	derived 	from 	the 	State’s 	criminal 	complaint.	2
Defendant was detained late one morning for outstanding warrants for trespassing	3
and assault. As the officer placed Defendant in handcuffs, he noticed Defendant was	4
holding a “plastic baggie” in his right palm containing a “white powder.” After being	5
advised of his Miranda rights, Defendant stated that “he found the baggie lying on	6
the ground and put it in his pocket[,]” and “he didn’t know what was in it.”	7
Defendant also admitted that “he . . . tried to get rid of [the baggie] when he saw the	8
police 	car 	pull 	up.” 	The 	substance 	in 	the 	baggie 	tested 	positive 	for	9
methamphetamine. Although the exact quantity of methamphetamine is unclear	10
from the record, a laboratory report referred to it as a “trace amount.”	11
{3} 	Defendant filed a motion to dismiss the possession charge, arguing that the	12
State could not prove he knew the baggie contained a controlled substance without	13
additional evidence to corroborate his knowledge. At the hearing on Defendant’s	14
motion, 	the 	State 	argued 	that 	there 	was 	sufficient 	evidence 	of 	Defendant’s	15
knowledge based on the facts as set forth in 	the complaint—facts to which both	16
Defendant and the State stipulated. The district court agreed and denied Defendant’s	17
motion. Defendant conditionally pleaded no contest, reserving his right to appeal the	18
denial of his motion to dismiss. This appeal followed.	19

3
DISCUSSION	1
{4} 	“[A] district court may dismiss a criminal information or indictment when	2
guilt turns on a ‘purely legal issue’ and any relevant ‘factual predicate underlying	3
the charges’ is undisputed by the state.” State v. Pacheco, 2017-NMCA-014, ¶ 2,	4
388 P.3d 307 (quoting State v. Foulenfont, 1995-NMCA-028, ¶ 6, 119 N.M. 788,	5
895 P.2d 1329); see Rule 5-601(C) NMRA (“Any defense, objection or request	6
which is capable of determination without a trial on the merits may be raised before	7
trial by motion.”). The “underlying question” the district court must answer in	8
deciding a Foulenfont motion is “whether the undisputed facts—whether stipulated	9
to by the [s]tate or alleged in the indictment or information—show that the [s]tate	10
cannot prove the elements of the charged offense at trial.” Pacheco, 2017-NMCA-	11
014, ¶ 10. Often the answer to this question turns on “whether the [s]tate could	12
reasonably assert the availability of additional evidence.” Id. (internal quotation	13
marks and citation omitted). “Whether a district court properly grants or denies a	14
defendant’s motion to dismiss an indictment on purely legal grounds presents a	15
question of law that we review de novo.” State v. Winn, 2019-NMCA-011, ¶ 9, 435	16
P.3d 1247.	17
{5} 	In order to convict Defendant of possession of methamphetamine, the State	18
must prove beyond a reasonable doubt that: (1) Defendant had methamphetamine in	19
his possession, and (2) Defendant knew the substance in his possession was	20

4
methamphetamine “or believed it to be some drug or other substance the possession	1
of which is regulated or prohibited by law.” UJI 14-3102 NMRA. Defendant	2
continues to challenge the State’s ability to prove the second element, arguing that,	3
based on the stipulated facts of the complaint, the State could not prove, as a matter	4
of law, that Defendant knew the trace amount of powder in the baggie was	5
methamphetamine because there was no corroborating evidence of his knowledge,	6
as required by State v. Reed, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113. We	7
disagree.	8
{6} 	In Reed, the defendant was a passenger in a car that was pulled over for a	9
broken license plate light and the driver’s failure to wear a seatbelt. Id. ¶ 3. At some	10
point during the stop, the defendant asked the driver for a pack of cigarettes, which	11
the driver gave to him. Id. ¶ 5. Although the officer noted that neither of the two men	12
were acting suspiciously, he eventually had both occupants step out of the vehicle	13
and empty their pockets. Id. ¶¶ 6-7. The defendant emptied his pockets and produced	14
a cellophane cigarette wrapper. Id. ¶ 7. The officer could not see anything on the	15
wrapper until he held it up to a streetlight, at which time he saw a trace amount of	16
what was later determined to be cocaine. Id. The chemist who tested the cocaine	17
“estimated [its] weight to be approximately two milligrams, which he equated to	18
about five or six grains of salt.” Id. ¶ 9.	19

5
{7} 	The 	defendant 	was 	convicted 	of 	possession 	of 	a 	controlled 	substance	1
following a jury trial. 	Id. 	¶ 11. On appeal, the defendant argued “that mere	2
possession of a wrapper with only a trace amount of cocaine in it is not a sufficient	3
basis to prove knowledge.” Id. ¶ 15. Our Supreme Court agreed there was no	4
evidence to indicate that the defendant knew the wrapper had a powdery residue in	5
it or that the residue was cocaine. Id. ¶ 16. In so holding, the Court noted that the	6
amount of cocaine in the wrapper was so small that it was not immediately apparent	7
to the human eye, the defendant did not flee or otherwise act in a suspicious manner,	8
the officer did not find any drug paraphernalia or other drugs in the vehicle or on the	9
defendant, and the defendant did not make any admission that could support an	10
inference of knowledge. Id. The Court also rejected the state’s argument that	11
possession of the wrapper itself corroborated the defendant’s knowledge “in the	12
same way that finding trace amounts of a controlled substance on other types of drug	13
paraphernalia has been found to corroborate a defendant’s knowledge” because the	14
state failed to present evidence at trial that cellophane cigarette wrappers were	15
commonly used to transport and store crack cocaine. Id. ¶ 17 (internal quotation	16
marks and citation omitted). Because the Court “[could ]not articulate a coherent	17
rationale” for finding that the defendant knew the wrapper contained cocaine, the	18
Court reversed the defendant’s conviction. Id. ¶ 18.	19

6
{8} 	Reed 	is distinguishable from the instant case in several respects. First,	1
although 	the 	laboratory 	report 	referred 	to 	testing 	a 	“trace 	amount” 	of	2
methamphetamine, 	the 	complaint 	did 	not 	specify 	that 	the 	amount 	of	3
methamphetamine in the plastic baggie in this case was so slight that it “was not	4
immediately apparent to the human eye.” Id. ¶ 16. The complaint simply noted that	5
the officer saw a white powder in the baggie. It is also notable that Defendant did	6
not claim that he thought the baggie was empty. Instead he claimed that “he didn’t	7
know what was in it.” (Emphasis added.) Cf. id. ¶ 16 (noting that “[t]here was no	8
evidence to indicate [the defendant] knew the wrapper had a white residue in it”). A	9
jury could infer from these facts that Defendant could see the white powder in the	10
baggie. See State v. Stefani, 2006-NMCA-073, ¶ 39, 139 N.M. 719, 137 P.3d	11
659 (stating that a “jury [is] free to draw inferences [from] the facts necessary to	12
support 	a 	conviction”). 	Second, 	unlike 	Reed, 	which 	was 	decided 	after 	the	13
defendant’s trial and conviction, 1998-NMSC-030, ¶ 11, the State still had the	14
opportunity to provide evidence at trial to corroborate Defendant’s knowledge, such	15
as demonstrating that plastic baggies, like the one Defendant had, are often used to	16
package methamphetamine. See Pacheco, 2017-NMCA-014, ¶ 10 (“More often than	17
not, the question [to be decided in a Foulenfont motion] is whether the state could	18
reasonably assert the availability of additional evidence.” (alteration, internal	19
quotation marks, and citation omitted)); cf. State v. Tidey, 2018-NMCA-014, ¶¶ 3,	20

7
26, 409 P.3d 1019 (discussing officer’s testimony that small baggies “are commonly	1
used to package methamphetamine”).	2
{9} 	Lastly, in contrast to the defendant in Reed, Defendant made an admission	3
from which a jury could infer his knowledge of the contents of the baggie. Defendant	4
admitted to the officer that “he . . . tried to get rid of [the baggie] when he saw the	5
police car pull up.” A jury could reasonably infer from this admission that Defendant	6
knew the baggie contained a controlled substance such as methamphetamine. See	7
State 	v. 	Apodaca, 	1994-NMSC-121, 	¶ 	9, 	118 	N.M. 	762, 	887 	P.2d 	756	8
(“Concealment may 	be 	considered 	as 	a 	circumstance 	tending 	to 	show 	a	9
consciousness of guilt.” (internal quotation marks and citation omitted)); State v.	10
Montoya, 1966-NMSC-224, ¶ 10, 77 N.M. 129, 419 P.2d 970 (“Knowledge, like	11
intent, is personal in its nature and may not be susceptible of proof by direct	12
evidence. It may, however, be inferred from occurrences and circumstances.”).	13
Given the corroborating evidence that could be used to demonstrate Defendant’s	14
knowledge that he possessed illegal narcotics, the district court correctly concluded	15
Reed did not mandate dismissal in this case. See State v. Wasson, 1998-NMCA-087,	16
¶ 12, 125 N.M. 656, 964 P.2d 820 (“A defendant’s knowledge or intent generally	17
presents a question of fact for a jury to decide.”).	18
CONCLUSION	19
{10} 	For the foregoing reasons, we affirm.	20

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{11} 	IT IS SO ORDERED.	1
____________________________________	2
JACQUELINE R. MEDINA, Judge	3
WE CONCUR:	4
_______________________________	5
J. MILES HANISEE, Chief Judge	6
_______________________________	7
BRIANA H. ZAMORA, Judge	8