State v. Brenn

• Decision Date: 22 August 2005
• Docket Number: No. 24,763.,24,763.
• Citation: 121 P.3d 1050
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Shawna Michelle BRENN, Defendant-Appellant.
• Court: New Mexico Supreme Court

121 P.3d 1050

STATE of New Mexico, Plaintiff-Appellee, v. Shawna Michelle BRENN, Defendant-Appellant.

No. 24,763.

Court of Appeals of New Mexico.

August 22, 2005.

Certiorari Denied, No. 29,440, October 10, 2005.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellee.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

WECHSLER, J.

{1} Defendant Shawna Brenn appeals her conviction for attempted trafficking in methamphetamine by manufacture, arguing that the evidence was insufficient to support her conviction because it did not indicate that she took any act to manufacture methamphetamine. Defendant had rented a hotel room in which she and another had large quantities of materials necessary to manufacture methamphetamine, some of which was unpackaged. We conclude that the evidence was sufficient to support the conclusion that Defendant had not merely engaged in preparation, but had taken a substantial step toward the manufacture of methamphetamine. As a result, we affirm Defendant's conviction for attempted manufacturing.

Background

{2} Two New Mexico State Police Officers, Christina Madrigal and Eric Mendoza, narcotics agents, had learned that an unidentified male had purchased seven gallons of iodine from a local feed store in Clovis, New Mexico. The officers tracked the vehicle used by the purchaser of the iodine to a local motel where Defendant had rented a room. The vehicle, which was also rented to Defendant, was in the parking lot, and the officers saw a large amount of iodine in the back of the vehicle. The officers knocked on the motel room door and Defendant answered. The room was filled with smoke and contained two methamphetamine pipes. Defendant informed the officers that she and the other person in the room, a male named Rodriguez, were smoking methamphetamine when the officers arrived. After obtaining Defendant's consent to search the room, the officers found numerous items that testimony established to be essential ingredients in manufacturing methamphetamine.

{3} Defendant was charged with one count of attempted trafficking of methamphetamine by manufacture, one count of possession of methamphetamine, and one count of possession of drug paraphernalia. The possession of methamphetamine charge was dismissed before trial, and Defendant was tried and convicted on the other two charges. Defendant now appeals those convictions.

Standard of Review

{4} When reviewing a claim of insufficiency of the evidence, we determine whether substantial evidence, either direct or circumstantial, exists to support a verdict of guilty beyond a reasonable doubt for every essential element of the crime at issue. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). A sufficiency of the evidence review involves a two-step process. Id. at 766, 887 P.2d at 760. Initially, we view the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all reasonable inferences in favor of the verdict. Id. "[T]hen we make a legal determination of whether the evidence viewed in this manner could justify a finding by [a] rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt." Id. (internal quotation marks and citation omitted); cf. State v. Stettheimer, 94 N.M. 149, 153-54, 607 P.2d 1167, 1171-72 (Ct.App.1980) (observing that although the defendant alleged insufficient evidence to constitute attempt, his allegation that there was no overt act in furtherance of the crime but instead merely preparation raises a legal issue). We do not reweigh the evidence or substitute our judgment for that of the factfinder. State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.

Sufficiency of the Evidence

{5} The felony of trafficking by manufacturing consists of "manufacture of any controlled substance enumerated in Schedules I through V or any controlled substance analog as defined in Subsection W of Section 30-31-2." NMSA 1978, § 30-31-20(A)(1) (1990). Methamphetamine is a Schedule II controlled substance. See NMSA 1978, § 30-31-7(A)(3)(c) (1979). "`[M]anufacture' means the production, preparation, compounding, conversion or processing of a controlled substance. . . ." NMSA 1978, § 30-31-2(M) (2002). The jury was instructed that, to convict Defendant of attempt to manufacture methamphetamine, it had to find beyond a reasonable doubt that Defendant intended to commit the crime of manufacturing methamphetamine and that she began to do an act which constituted a substantial part of the manufacturing but failed to commit the act of manufacturing. See UJI 14-2801 NMRA. The jury was also instructed that it could convict Defendant of attempt to manufacture under the theory of accessory liability if it found, beyond a reasonable doubt, that Defendant intended that the crime of manufacturing be committed, an attempt to commit the crime was committed, and Defendant helped, encouraged, or caused the attempt to commit the crime. See UJI 14-2820 NMRA.

{6} Defendant contends that her conviction for attempted manufacture of a controlled substance must be reversed because the State failed to show that Defendant did any actions in furtherance of the crime of manufacturing methamphetamine. She claims that the State failed to prove that she took even "one single step toward manufacturing methamphetamine, let alone an act that constituted a substantial part of manufacturing." She notes that the testimony at trial only indicated that Rodriguez purchased the iodine and that there was nothing to prove that Defendant "had anything to do with the various meth ingredients found in the motel room." We disagree.

{7} At trial, the officers testified in support of Defendant's conviction. Their testimony established that an unidentified male purchased nine gallons of iodine and drove away with seven gallons in a bright yellow Ford Escape. Madrigal testified that the purchase of such a large amount of iodine was suspicious and, based upon her training and experience, the purchaser of such a large quantity usually intended to use it to cook methamphetamine. Mendoza testified that he knew of no common use for that quantity of iodine. Both officers stated that iodine was a key ingredient in manufacturing methamphetamine.

{8} Madrigal testified that, after tracking the vehicle used by the purchaser of the iodine to the Motel 6 on Mabry Drive, she saw the yellow Ford Escape, which had been rented to Defendant, with a large amount of iodine stored in the back. The officers knocked on the door of the motel room registered to Defendant and Defendant answered. The room was filled with smoke and contained two methamphetamine pipes. Defendant admitted that she and Rodriguez were smoking methamphetamine when the officers arrived.

{9} The search of the motel room revealed over 5000 pseudoephedrine pills, a quart of acetone, scales, and an air purifier. Most of the pseudoephedrine pill boxes had been opened and the pills removed from their blister packs. The loose pills were stored in a box on the floor of the motel room while the boxes of pills were found in a backpack.

{10} Mendoza testified that Defendant had told him that she had been using methamphetamine since the age of fourteen. She said that she and Rodriguez traveled to Clovis to purchase iodine because the price there, $25 per gallon, was much less than the price in Albuquerque, where iodine is sold for $125 per gallon. Defendant told Mendoza that she understood that iodine was used to manufacture methamphetamine and that she could make good money trading the iodine "to cooks or manufacturers of methamphetamine in Albuquerque."

{11} Testimony established that pseudoephedrine pills are cold and allergy pills which contain ephedrine, an essential ingredient in manufacturing methamphetamine. After testifying to his specialized training in methamphetamine labs, Mendoza testified that the acetone, iodine, and pseudoephedrine pills are the basis for manufacturing methamphetamine. He stated that ephedrine is a precursor to methamphetamine and explained that the types of chemicals found in the motel room are associated with the "red phosphorus" method of manufacturing, which requires combining ephedrine, iodine, and red phosphorus, which are then heated.

{12} Defendant testified. However, her testimony was neither internally consistent nor consistent with her earlier statements to the investigating officers. At trial, Defendant claimed that she did not know that the backpack contained pseudoephedrine pills, and she denied telling Mendoza that he would find pills in the room. She later admitted seeing the packaged pills in their boxes and admitted telling the officers that she knew about the blister packs of pseudoephedrine. She admitted telling the officers that she knew that iodine and ephedrine are key ingredients in manufacturing methamphetamine. However, she also claimed that she knew nothing about the technicalities for manufacturing methamphetamine.

{13} Defendant first denied knowing that Rodriguez was buying iodine and denied ever telling the officers that Rodriguez intended to buy iodine or that she intended to resell iodine in Albuquerque. She then admitted that she told Mendoza that iodine could be sold for $125 per gallon in Albuquerque and admitted that she had told Mendoza that she was in Clovis to purchase iodine because it is cheaper. She explained the inconsistencies in her statements by claiming that she had only told Mendoza about the cheaper iodine because she assumed Rodriguez would resell the iodine once she saw the receipt for the iodine after Rodriguez returned to the room. She admitted telling the officers that she started using methamphetamine at age fourteen, but claimed that this was a lie and that she had only been regularly using methamphetamine for about a year. She...