112 P.3d 1104 (N.M. 2005), 28,791, State v. Franco

Docket Nº:28,791.
Citation:112 P.3d 1104, 137 N.M. 447, 2005 -NMSC- 13
Opinion Judge:[9] The opinion of the court was delivered by: Minzner, Justice.
Party Name:STATE of New Mexico, Plaintiff-Petitioner, v. Gina FRANCO, Defendant-Respondent.
Attorney:Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, for Petitioner., John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, for Respondent. [7] Patricia A. Madrid, Attorney General James O. Bell, Assistant Attorney Gen...
Case Date:April 29, 2005
Court:Supreme Court of New Mexico
 
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Page 1104

112 P.3d 1104 (N.M. 2005)

137 N.M. 447, 2005 -NMSC- 13

STATE of New Mexico, Plaintiff-Petitioner,

v.

Gina FRANCO, Defendant-Respondent.

No. 28,791.

Supreme Court of New Mexico

April 29, 2005

Rehearing Denied May 19, 2005.

Page 1105

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, for Petitioner.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, for Respondent.

[137 N.M. 448]

OPINION

MINZNER, Justice.

{1} Defendant appeals from convictions following a jury trial for possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(D) (1990), and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (1963, prior to 2003 amendment). Defendant initially appealed her convictions to the Court of Appeals on several grounds, including whether her conviction for possession of a controlled substance and tampering with evidence violated her right to be free from double jeopardy. State v. Franco, 2004 -NMCA- 099, ¶ 1, 136 N.M. 204, 96 P.3d 329. The Court of Appeals reversed on the double jeopardy issue and remanded to the district court with instructions

Page 1106

[137 N.M. 449] to vacate Defendant's conviction and sentence for possession of a controlled substance. Id. ¶ 24. The State petitioned this Court for certiorari, and we now hold the two convictions did not violate the constitutional prohibition against double jeopardy. We therefore reverse the Court of Appeals on this issue, and we affirm Defendant's judgment and sentence.

I.

{2} The following facts were testified to at trial. Police obtained a warrant to search an apartment of a suspected drug dealer. The warrant was granted the day after Defendant's boyfriend, "Patrick," sold cocaine at the apartment to an undercover police officer. As officers arrived to execute the warrant, they observed several people in front of the apartment whom they secured before entry. Officer Moyers knocked at the partially opened front door, identified himself as a police officer and announced he had a search warrant. After waiting a few seconds, he entered the apartment, which was a small, one-room efficiency, consisting of a combined living room, bedroom, and kitchen, and a walled-off bathroom. As he entered, Moyers saw two men jump up from the couch, and he ordered them to the ground. As Officer Edmondson entered immediately behind Moyers, he saw Moyers securing one of two men. As he began securing the second, he saw Defendant run into the bathroom. Edmondson could see Defendant facing the bathroom window, but he did not see anything in her hand or see her throw anything out the window. Moyers, who did not notice Defendant when he entered, ran into the bathroom to secure the area. When he went into the bathroom, Defendant was standing between the toilet and window, facing the door. After securing her, he searched the bathroom, but he did not find any contraband or indication the toilet had been flushed to dispose of evidence. Officers initially located drug paraphernalia in the kitchen area, including pipes to smoke crack, brillo pads to filter the crack in the pipes, razor blades, baking soda to cook powder cocaine into crack for smoking, and a spoon with white residue. After conducting a more thorough search, police discovered a Tylenol bottle containing 7.32 grams of crack cocaine outside the apartment, directly under the bathroom window.

{3} Defendant admitted she was in the apartment for about thirty to forty-five minutes before police arrived. She also admitted handling a similar Tylenol bottle during that time, until "L.D.," the owner of the apartment, told her not to handle it and took possession of the bottle. She denied knowing what the bottle contained or throwing it out the window. Defendant claimed she entered the bathroom before police arrived and was fixing her hair when they arrived. According to Moyers, Defendant told him and Edmondson that she would admit the cocaine was hers if they did not arrest her. In addition, according to Edmondson, Defendant asked whether she would be arrested if she admitted the "dope" was hers. Defendant testified the officers told her she would not be arrested if she admitted it was hers, which she refused to do. Defendant was arrested and charged with possession of a controlled substance and tampering with evidence.

{4} The jury convicted Defendant on both charges. The Court of Appeals concluded the charge of possession should be viewed as a lesser-included offense of the charge of tampering with evidence, and therefore convictions for both offenses violated double jeopardy. For the following reasons, we disagree.

II.

{5} Whether Defendant's conviction for the violation of Sections 30-31-23(D) and 30-22-5 constitutes multiple punishment for the "same offense" as barred by the double jeopardy clause is a question of legislative intent, which we review de novo. See State v. Foster, 1999 -NMSC- 007, ¶ 28, 126 N.M. 646, 974 P.2d 140. To determine whether these statutes are the "same offense" for double jeopardy purposes, we apply a two-part test: (1) "whether the conduct underlying the offenses is unitary;" and, if so, (2) "whether the legislature intended to create separately punishable offenses." Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991) .

Page 1107

[137 N.M. 450] {6} In applying the first part of this test, the Court of Appeals concluded Defendant's conduct was unitary. The State argued Defendant's conduct was not...

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