State v. Arias, A-1-CA-35498

• Decision Date: 19 July 2018
• Docket Number: NO. A-1-CA-35498,A-1-CA-35498
• Citation: 427 P.3d 129
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jim ARIAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

427 P.3d 129

STATE of New Mexico, Plaintiff-Appellee,

v.Jim ARIAS, Defendant-Appellant.

NO. A-1-CA-35498

Court of Appeals of New Mexico.

Filing Date: July 19, 2018

Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

HANISEE, Judge.

{1} Defendant Jim Arias appeals his conviction for possession of synthetic cannabinoids in violation of NMSA 1978, Section 30-31-23(B) (2011) of the Controlled Substances Act (CSA), NMSA 1978, §§ 30-31-1 through -41 (1972, as amended through 2018). Defendant contends that there was insufficient evidence to support his conviction because the State failed to meet its burden of proving that the substance in his possession was a "synthetic cannabinoid" within the meaning of the term as used in the CSA. We agree and reverse.

BACKGROUND

{2} During a routine visit to Defendant's home, Defendant's probation officer, Isabelle Lucero, noticed that Defendant's appearance and behavior were different than what she was used to, that he "was not in his usual manner." According to Ms. Lucero, Defendant had bloodshot, dilated eyes, difficulty walking, and was slurring his speech. Upon conducting a standard walkthrough of Defendant's house, Ms. Lucero located a "green, leafy substance" sitting on top of a receipt on Defendant's bedroom dresser. Ms. Lucero suspected the substance was a synthetic cannabinoid, or "spice."¹

{3} Officer Travis Loomis of the Clovis Police Department was called to Defendant's home, took possession of the substance, and field tested it for tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. The substance tested negative for THC. Officer Loomis, who interacted with Defendant and described him as "lethargic" and having "slurred speech[,]" also suspected that the substance was "synthetic cannabis." Based on Officer Loomis's belief that Defendant was in possession of a controlled substance in violation of the CSA, Defendant was arrested and charged with a single count of possession of synthetic cannabinoids, contrary to Section 30-31-23(B).

{4} The only witnesses who testified at Defendant's bench trial were Ms. Lucero, Ms. Lucero's supervisor who also participated in the visit to Defendant's home, and Officer Loomis. Ms. Lucero and Officer Loomis both offered lay opinions, based on their training and experience, that the substance found on Defendant's dresser was a synthetic cannabinoid. With respect to training, both testified that they received training regarding synthetic cannabinoids in their respective academies, Ms. Lucero describing her academy training as "just a short, little class." Ms. Lucero also testified that she receives email notices from her department several times a year with pictures of "synthetics" and "what's new out there on the streets." With respect to experience, Ms. Lucero testified that in her work as a probation officer, she had come into contact with substances—later confirmed through laboratory testing—that she believed to be synthetic cannabinoids on at least ten occasions. Officer Loomis testified to having come into contact with synthetic cannabinoids fewer than ten times during his time as a police officer.

{5} Neither offered any testimony regarding the chemical composition of the substance found on Defendant's dresser, and both conceded that they had no training in forensic chemistry and had never personally obtained a positive identification of a synthetic cannabinoid through field or laboratory testing. Officer Loomis had no recollection of sending the substance found on Defendant's dresser to the state crime lab for further testing and confirmation of what the substance was. He conceded that the only thing he could "testify to ... for sure" is that the substance was not marijuana. When asked on cross-examination if she could identify a synthetic cannabinoid just by looking at it, Ms. Lucero responded, "You can, just, yeah, it's, it's a green, leafy substance." She then conceded that the "green, leafy substance" found on Defendant's dresser could also be marijuana, oregano, or an imitation substance and that without testing the substance, she could only suspect what the substance was. On redirect examination, when asked whether the substance was synthetic cannabinoids, Ms. Lucero stated, "Yes[,]" without offering any further explanation.

{6} In addition to eliciting Ms. Lucero's lay testimony as to the identity of the substance, the State moved to qualify Ms. Lucero as an expert on "whether or not ... Defendant's behavior was consistent with [Ms. Lucero's] observations of other people who are under the influence of synthetic cannabinoids." As to her qualifications to testify as an expert on that issue, Ms. Lucero explained that she had received training from Norchem, the laboratory that does "further confirmation" of various substances for state agencies, and that Norchem had "given us lists of signs, of symptoms of what each substance can cause an individual, how they react." The training included information about symptoms for someone under the influence of various controlled substances, such as cocaine, methamphetamine, and "spice," as well as alcohol. Ms. Lucero also testified that in her experience, people who are under the influence of "spice" behave differently than people who are under the influence of other controlled substances, including marijuana.

{7} Over Defendant's objection, the district court allowed Ms. Lucero to testify as an expert "on the issue of whether or not a person is under the influence of a synthetic cannabinoid versus other substances." Ms. Lucero then testified that she believed that the substance on Defendant's dresser was "the synthetic ‘spice’ " based on Defendant's "behavior and past issues with past tests on probation." She further opined that with regard to the way Defendant was behaving when she saw him, she believed Defendant was under the influence of synthetic cannabinoids. Specifically, based on her past experience, Ms. Lucero testified that people under the influence of "spice" are "very, very out of it, their eyes are very bloodshot and very dilated, they have a hard time walking, ... they say off the wall things, ... their mind ... is not right, they start just saying different things that don't make sense, you can hardly understand the way they speak, their speech is slurred." Regarding Defendant's behavior on the night in question, Ms. Lucero testified that "his speech was in and out, his speech was very slurred, he was unable to make full sentences that evening."

{8} After the State rested, Defendant moved for a directed verdict, arguing that the State had failed to meet its burden of proving that the substance alleged to be a synthetic cannabinoid was, in fact, a synthetic cannabinoid. Specifically, Defendant noted that Section 30-31-6(C)(19) of the CSA designates specific chemical compounds as "synthetic cannabinoids" and pointed out that the State presented no evidence regarding the chemical makeup of the substance. Defendant argued that Ms. Lucero's and Officer Loomis's lay opinions that the substance was a synthetic cannabinoid and Ms. Lucero's expert opinion that Defendant was under the influence of synthetic cannabinoid were insufficient on their own to prove that the substance found on Defendant's dresser was a synthetic cannabinoid as the term is defined under the CSA. The State argued that the following evidence supported the inference that the substance was a synthetic cannabinoid: (1) Defendant was "clearly under the influence[;]" (2) Ms. Lucero's opinion that Defendant was under the influence of synthetic cannabinoids; (3) "the effect that the drug had on ... Defendant[;]" (4) the substance was found in Defendant's bedroom; and (5) the opinions of Ms. Lucero and Officer Loomis that the substance was a synthetic cannabinoid.

{9} The district court denied Defendant's motion and proceeded to evaluate the evidence presented. Regarding Ms. Lucero's opinion that Defendant was under the influence of a synthetic cannabinoid, the district court noted that it was "not giving [that opinion] as much credence maybe as [the State] would hope." The district court explained that Ms. Lucero's "testimony was ... general enough in nature ... [and] could describe someone under the influence of alcohol ... [or] other controlled substances" and that it "was not sure that [it] view[s] that as being synthetic-cannabinoids specific." Nevertheless, the district court found that "[t]here is some circumstantial evidence to support the officers' opinions" and stated that it was "basically basing this off of the officers' opinions itself." Responding to Defendant's arguments that the State failed to present any evidence of the chemical makeup of the substance and that the court could not rely on the officers' opinions, alone, to support conviction, the district court concluded that under New Mexico law, "officers still can identify [a controlled substance] without having a lab test. It goes to the weight of the evidence, not whether it's admissible." The district court then found that "the weight of the evidence is enough here." The district court further reasoned that all of the substances listed in the CSA—and specifically marijuana, cocaine, and methamphetamine—are made up of a specific chemical compound, even if not "spelled out" in the CSA, and that New Mexico case law "tells us that they can be identified without a lab test." The district court explained that it was finding Defendant guilty "based upon the way [the substance] was found, based upon the surrounding circumstances, and based upon the opinions of the officers[.]"

DISCUSSION

{10} We begin by observing, as this Court did in State v. Maldonado , 2005-NMCA-072, ¶ 16, 137 N.M. 699, 114 P.3d 379, that "[t]he concept of substantial evidence is meaningless unless it is...