State v. Franco

• Citation: 2004 NMCA 99,96 P.3d 329,136 N.M. 204
• Decision Date: 15 June 2004
• Docket Number: No. 23,719.,23,719.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gina FRANCO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

96 P.3d 329

136 N.M. 204

2004 NMCA 99

STATE of New Mexico, Plaintiff-Appellee, v. Gina FRANCO, Defendant-Appellant.

No. 23,719.

Court of Appeals of New Mexico.

June 15, 2004.

Certiorari Denied, August 3, 2004.

Certiorari Granted, August 10, 2004.

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.

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

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

OPINION

VIGIL, J.

{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.

BACKGROUND

{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 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. He and Nickerson were standing in the kitchen area when a warning came from a lookout that police were approaching. Before the police got out of their cars, Nickerson threw the Tylenol bottle through a hole in the kitchen window towards the street, which was in the direction of the bathroom window. This was actually a window where the air conditioner used to be, and the screen on this window was also torn. Nickerson then sat on the couch in the apartment, and the police entered the apartment.

{8} The trial centered on whether Defendant threw the Tylenol bottle out of the bathroom window. The State argued to the jury in its opening statement and closing argument that Defendant committed the crimes by throwing the Tylenol bottle outside the bathroom window. In closing, the prosecutor argued,

[Defendant] says she was already in the bathroom. And I would just tell you, this whole case revolves on her running away when the police officers come in, because that shows guilty knowledge. That shows, `I've got dope. I've got to get rid of it.' So if you don't believe that she ran away, that she ran into that bathroom, then you shouldn't find her guilty.

Defendant's attorney countered in his opening statement and closing argument that Defendant was not guilty because she was already in the bathroom when the police arrived, and she did not throw the Tylenol bottle through the window. In his opening statement, Defendant's attorney asserted, "What this boils down to is whether or not the State can prove beyond a reasonable doubt that [Defendant] had that Tylenol bottle in her hand and that she did in fact throw it out the window." On appeal, Defendant continues arguing that she was convicted of possession of the cocaine and tampering with evidence based on the "inference that she had thrown the bottle from the window." We resolve Defendant's arguments on appeal on this basis.

{9} The jury was given the following jury instruction based on UJI 14-3102 NMRA 2002 on the elements necessary to convict Defendant of possession of cocaine:

For you to find the Defendant guilty of Possession of a Controlled Substance, To-Wit: Cocaine as charged in Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The Defendant had Cocaine in her possession;

2. The Defendant knew it was Cocaine or believed it to be Cocaine or believed it to be some drug or other substance the possession of which is regulated or prohibited by law;

3. This happened in New Mexico on or about the 14th day of May, 2002.

The jury instruction in UJI 14-3130 NMRA 2004, defining possession states:

A person is in possession of Cocaine when she knows it is on her person or in her presence, and she exercises control over it.

Even if the substance is not in her physical presence, she is in possession if she knows where it is, and she exercises control over it.

Two or more people can have possession of a substance at the same time.

A person's presence in the vicinity of the substance or her knowledge of the existence or the location of the substance, is not, by itself, possession.

UJI 14-3130 (emphasis added). The first sentence of this instruction is designed to be used in a controlled substance case in which possession is an element and is in issue, and one or more of the second, third, and fourth sentences "may" be used, "depending on the evidence." Use Note to UJI 14-3102. The jury was given this instruction except for the emphasized portion in Instruction No. 6.

DISCUSSION

Jury Instructions

{10} Defendant argues it was error for the trial court not to include that portion of UJI 14-3130 emphasized above in its instruction. However, Defendant did not object to the instruction as given, and she did not tender a requested instruction of her own which included the omitted phrase. Therefore, we review only to determine whether fundamental error occurred. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M.621, 92 P.3d 633(2004); Rule 12-216(B)(2) NMRA 2004 (providing appellate court discretion as an exception to the preservation rule to review questions involving fundamental error or fundamental rights). Our Supreme Court recently reiterated that fundamental error,

must go to the foundation of the case or take from the defendant a right which was essential to h[er] defense and which no court could or ought to permit h[er] to waive. Each case will of necessity, under such a rule, stand on its own merits. Out of the facts in each case will arise the law.

Barber, 2004-NMSC-019, ¶ 8 (quoting State v. Garcia, 46 N.M. 302, 309, ...