State v. Barber, 27,938.

Citation92 P.3d 633, 2004 NMSC 19, 135 N.M. 621
Case DateMay 19, 2004
CourtSupreme Court of New Mexico

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, for Petitioner.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Albuquerque, for Respondent.


BOSSON, Justice.

{1} Defendant Joe Barber appeals from his conviction of possession of methamphetamine with intent to distribute. See NMSA 1978, § 30-31-22 (1990). Our primary issue is whether the absence of a jury instruction defining possession constitutes fundamental error and requires a new trial. Defendant claims that the failure to define possession addressed a "critical determination akin to a missing elements instruction" and created the possibility of jury confusion. The Court of Appeals declined to find fundamental error. See State v. Barber, 2003-NMCA-053, ¶¶ 9-11, 133 N.M. 540, 65 P.3d 1095

. We granted certiorari to review that question. Although Defendant would have been entitled to a jury instruction defining possession, we hold that absent his defense counsel's request, the trial court was not required to provide the instruction sua sponte. We further hold that the evidence of possession and intent was sufficient to support Defendant's conviction. Accordingly, we affirm the judgment and conviction below.


{2} On January 4, 2001, police went to the Budget 7 Motel in Lovington, New Mexico, in response to a confidential tip. Audrey Watson, who was staying in one of the motel rooms with her children, was standing in the parking lot with D'Lisa Dudley and two men. Watson gave the officers consent to search her room. Defendant was in the bathroom.

{3} In the motel room, the police found syringes in Watson's purse and Dudley's jacket. On top of the toilet in the bathroom, the officers found a small set of scales, a crumpled piece of foil, three plastic baggies containing methamphetamine, and a Cellular One business card folded in half with traces of methamphetamine in the crease. The business card had the name of a Cellular One sales representative printed on it and some notations handwritten on the back. In the medicine cabinet, the police found a box of baking soda, empty corners cut from plastic bags, and an empty Marlboro box with the foil removed. Tests revealed no fingerprints on any of the evidence.

{4} In Defendant's pockets, police found a plastic notebook cover, two calendar pages, and various business cards. These cards included eight from Cellular One, two of which were printed with the name of the same sales representative as the card found on the toilet. Written on the back of these cards and on the calendar pages were names or initials, dates, and dollar figures. The officers found no drugs, money, or paraphernalia on Defendant's person. He was carrying a soft pack of Marlboros. Based on the contraband, drug paraphernalia, and other evidence found in the bathroom, the district attorney charged Defendant with possession of methamphetamine with intent to distribute.

{5} At trial, an expert on drug investigation testified that the notations on the Cellular One cards found in Defendant's wallet were consistent with drug transaction records and included names of known drug users. The officer also testified that the amount of methamphetamine found on the top of the toilet, and the way it was laid out, indicated to him that it was being packaged for sale.

{6} Defendant denied possessing the contraband in the bathroom or intending to distribute it. Defendant said that he went to the motel to take a shower before his afternoon shift as a roughneck on an oil rig. He did not bring a change of clothes or a shower kit. Defendant testified that he saw the methamphetamine in the bathroom but did not touch it because it did not belong to him. Defendant and three defense witnesses testified that Defendant often borrowed and loaned money and made notations on business cards to keep track of these lawful transactions.


{7} After a two-day trial, a jury convicted Defendant of one count of possession of methamphetamine with intent to distribute, contrary to Section 30-31-22. The jury was given the following Uniform Jury Instruction (UJI) without objection or any request for amplification or definition from Defendant:

For you to find the defendant guilty of Possession with Intent to Distribute, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant had Methamphetamine in his possession;
2. The defendant knew it was Methamphetamine;
3. The defendant intended to transfer it to another;
4. This happened in New Mexico on or about the 4th day of January, 2001.

UJI 14-3104 NMRA 2004. On appeal, Defendant argues for the first time that the trial judge should also have defined "possession" for the jury.

Standard of Review

{8} Because Defendant failed to preserve any error with respect to the definition of possession, we review only for fundamental error. See 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); State v. Sosa, 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017. The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice. State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991). Error that is fundamental, we have said,

must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him 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.

State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942). Although we exercise the power to review for fundamental error guardedly, we also recognize that "[t]here exists in every court . . . an inherent power to see that a man's fundamental rights are protected in every case." State v. Garcia, 19 N.M. 414, 421, 143 P. 1012, 1014-15 (1914) (opinion upon rehearing).

Defendant would have been entitled to a jury instruction defining possession.

{9} We must first determine whether Defendant would have been entitled to a definition of possession had he requested it. The State denies Defendant's entitlement to the instruction based on the strength of the evidence against him.

{10} The Use Note to UJI 14-3104, the instruction for possession with intent to distribute, states that the UJI definition of possession "should be given if possession is in issue." Because possession was not defined, the jury was not informed that a "person is in possession [of methamphetamine] when he knows it is on his person or in his presence, and he exercises control over it." UJI 14-3130 NMRA 2004 (emphasis added). As part of that definition, the jury also was not told that "[a] person's presence in the vicinity of the substance or his knowledge of the existence or the location of the substance, is not, by itself, possession." Id. In other words, the jury was never told that mere presence or proximity, even with knowledge, is not enough; there must be proof of "control" over the contraband for the jury to convict of possession. The Committee Commentary to UJI 14-3130 says this definition must be given when possession is in issue.1

{11} Defendant denied possessing the illegal drugs or exercising any control over them which, he argues, puts the element of possession "in issue" and makes the instruction defining possession mandatory. According to Defendant's theory of the case, and his testimony at trial, he went to the motel to take a shower. He saw the drugs and knew what they were, but did not touch them because they were not his. Defendant emphasizes that four admitted methamphetamine users were also in and around the motel room, and two of them had the paraphernalia to use methamphetamine. In other words, the drugs in the bathroom could have belonged to one or all of them. No witnesses testified that the drugs belonged to Defendant. Defendant also emphasizes that during trial, the prosecutor repeatedly relied on his physical proximity to the drugs as evidence of possession. Thus, the missing definition that proximity alone is not enough would have been important to the jury's understanding of Defendant's case.

{12} The parties' different theories and divergent views of the same evidence strongly suggest that possession was "in issue." Whether Defendant possessed the drugs or was simply in proximity to them was a vital issue in the case. Because this issue was in dispute, an instruction defining the difference between possession and mere proximity would have been important to Defendant's case and a helpful aid to the jury in understanding the legal implications of mere proximity. Cf. State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69

("When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error."). Despite the State's opinion that it had a strong case in support of possession, under these facts the issue remained for the jury to determine. Therefore had Defendant requested this definition at trial, it would have been reversible error for the court to deny him.

Fundamental Error

{13} Having determined it would have been error not to define possession for the jury, we exercise our discretion to examine whether the trial court's failure to give the definition constituted fundamental error. See Rule 12-216(B)(2).

{14} The State argues that, given the strength of the evidence, Defendant cannot show, as he must, that his conviction is so doubtful that it shocks the conscience. "The doctrine of fundamental error is to be resorted to...

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