96 P.3d 329 (N.M.App. 2004), 23,719, State v. Franco

Docket Nº:23,719.
Citation:96 P.3d 329, 136 N.M. 204, 2004 -NMCA- 99
Opinion Judge:[9] The opinion of the court was delivered by: VIGIL, Judge.
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Gina FRANCO, Defendant-Appellant.
Attorney:Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, for Appellee. , John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, for Appellant. [7] Patricia A. Madrid Attorney General James O. Bell Assistant Attorney General...
Case Date:June 15, 2004
Court:Court of Appeals of New Mexico

Page 329

96 P.3d 329 (N.M.App. 2004)

136 N.M. 204, 2004 -NMCA- 99

STATE of New Mexico, Plaintiff-Appellee,


Gina FRANCO, Defendant-Appellant.

No. 23,719.

Court of Appeals of New Mexico.

June 15, 2004

Certiorari Denied, No. 28,789, Aug. 3, 2004.

Certiorari Granted, No. 28,791, Aug. 10, 2004.

Page 330

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

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

Page 331

[136 N.M. 206] OPINION


{1} Defendant was convicted of one count of possession of a controlled substance (cocaine) and one count of tampering with evidence (cocaine). NMSA 1978, § 30-31-23 (1990); NMSA 1978, § 30-22-5 (2003). She appeals, contending that: (1) fundamental error was committed when the trial court failed to instruct the jury that her presence in the vicinity of the cocaine or her knowledge of the existence or location of the cocaine, is not, by itself, possession; (2) the failure of her attorney to request the instruction on constructive possession or to object to the instruction given by the trial court on constructive possession resulted in ineffective assistance of counsel; (3) there was insufficient evidence to support the two convictions; and (4) her convictions for both possession and tampering with evidence violate her right to be free from double jeopardy. We hold there was no fundamental error, that Defendant received effective assistance of counsel, and that substantial evidence supports the convictions. However, the conviction and sentence for both crimes violates Defendant's double jeopardy rights. We therefore affirm in part, reverse in part, and remand for further proceedings.


{2} Defendant went to Lawrence Nickerson's (Nickerson) apartment with her boyfriend, and the men started playing dominoes. Defendant ate some shrimp cocktail. She testified she saw a bottle of Tylenol on the table and started playing with it, but Nickerson told her to leave it alone and he took the bottle. She said she then used the bathroom, opened the door a crack and started fixing her hair in the bathroom when the police arrived. When the police came, she had been at the apartment for thirty to forty-five minutes. Defendant does not know if the bottle she handled was the same Tylenol bottle that was later found under the bathroom window.

{3} The police went to Nickerson's apartment in several different vehicles to execute a search warrant for cocaine. This was an efficiency apartment which consisted of one room which served as bedroom, livingroom, and kitchen, with a walled-off bathroom in the corner nearest to the entry door. When the police arrived, there were people out in front of the apartment, and the police, who were seven or eight in number, began screaming, "Get on the ground. We're the police. We have a search warrant." Eight seconds later, Officer Moyers knocked on the partially open apartment door, yelled loudly that he was a police officer executing a search warrant, waited a few seconds, and entered the apartment. Officer Moyers was the first officer to enter the apartment. The first officer to enter the premises always takes care of the people inside, and immediately goes to the bathroom to make sure evidence is not flushed down the toilet.

{4} Upon entering the apartment, Officer Moyers saw two males sitting on the couch. After ordering them both to the ground, he went directly to the bathroom. The door was partially opened, and he completely opened the door. He saw Defendant standing between the toilet and the bathroom window facing him, towards the door. Officer Moyers pulled her out of the bathroom and put her on the ground next to the bathroom door. He then looked into the toilet. There was no contraband in the toilet, and it was not running, so he concluded it had not been flushed.

{5} Officer Edmondson's testimony was different. He was the second officer to enter the apartment. Upon entering, he saw that Officer Moyers had already secured one individual, and to his left he saw Defendant and a male. When he started securing the male, he said Defendant ran to the bathroom and swung the door shut, but it did not latch. Officer Edmondson testified he saw Defendant in the bathroom through the open door, facing the bathroom window. He did not see anything in Defendant's hand, and he did not see her throw anything outside the window. The police released Defendant after checking to see if she had any warrants.

{6} The police found drug paraphernalia but no cocaine in the apartment. To make sure he did not miss anything in the bathroom, Officer Moyers searched it again. He looked into the water tank of the toilet, but

Page 332

[136 N.M. 207] found nothing. He then looked at the window, which was open, and saw a hole in the screen, large enough for a hand to reach through. He and another officer then walked behind the apartment and the second officer found a Tylenol bottle underneath the bathroom window. The contents appeared to be crack cocaine, which was confirmed by subsequent tests. Defendant was at another apartment nearby, and Officer Moyers motioned to her to return. She did, and she was arrested. Defendant denied throwing the Tylenol bottle through the bathroom window.

{7} Johnny Shaw testified on Defendant's behalf...

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