State v. Franco

Decision Date29 April 2005
Docket NumberDocket No. 28,791.
Citation2005 NMSC 013,112 P.3d 1104
PartiesSTATE OF NEW MEXICO, Plaintiff-Petitioner, v. GINA FRANCO, Defendant-Respondent.
CourtNew Mexico Supreme Court

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

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


MINZNER, Justice.

{1} Defendant appeals from convictions following a jury trial for possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(D) (1990), and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (1963, prior to 2003 amendment). Defendant initially appealed her convictions to the Court of Appeals on several grounds, including whether her conviction for possession of a controlled substance and tampering with evidence violated her right to be free from double jeopardy. State v. Franco, 2004-NMCA-099, ¶ 1, 136 N.M. 204, 96 P.3d 329. The Court of Appeals reversed on the double jeopardy issue and remanded to the district court with instructions to vacate Defendant's conviction and sentence for possession of a controlled substance. Id. ¶ 24. The State petitioned this Court for certiorari, and we now hold the two convictions did not violate the constitutional prohibition against double jeopardy. We therefore reverse the Court of Appeals on this issue, and we affirm Defendant's judgment and sentence.


{2} The following facts were testified to at trial. Police obtained a warrant to search an apartment of a suspected drug dealer. The warrant was granted the day after Defendant's boyfriend, "Patrick," sold cocaine at the apartment to an undercover police officer. As officers arrived to execute the warrant, they observed several people in front of the apartment whom they secured before entry. Officer Moyers knocked at the partially opened front door, identified himself as a police officer and announced he had a search warrant. After waiting a few seconds, he entered the apartment, which was a small, one-room efficiency, consisting of a combined living room, bedroom, and kitchen, and a walled-off bathroom. As he entered, Moyers saw two men jump up from the couch, and he ordered them to the ground. As Officer Edmondson entered immediately behind Moyers, he saw Moyers securing one of two men. As he began securing the second, he saw Defendant run into the bathroom. Edmondson could see Defendant facing the bathroom window, but he did not see anything in her hand or see her throw anything out the window. Moyers, who did not notice Defendant when he entered, ran into the bathroom to secure the area. When he went into the bathroom, Defendant was standing between the toilet and window, facing the door. After securing her, he searched the bathroom, but he did not find any contraband or indication the toilet had been flushed to dispose of evidence. Officers initially located drug paraphernalia in the kitchen area, including pipes to smoke crack, brillo pads to filter the crack in the pipes, razor blades, baking soda to cook powder cocaine into crack for smoking, and a spoon with white residue. After conducting a more thorough search, police discovered a Tylenol bottle containing 7.32 grams of crack cocaine outside the apartment, directly under the bathroom window.

{3} Defendant admitted she was in the apartment for about thirty to forty-five minutes before police arrived. She also admitted handling a similar Tylenol bottle during that time, until "L.D.," the owner of the apartment, told her not to handle it and took possession of the bottle. She denied knowing what the bottle contained or throwing it out the window. Defendant claimed she entered the bathroom before police arrived and was fixing her hair when they arrived. According to Moyers, Defendant told him and Edmondson that she would admit the cocaine was hers if they did not arrest her. In addition, according to Edmondson, Defendant asked whether she would be arrested if she admitted the "dope" was hers. Defendant testified the officers told her she would not be arrested if she admitted it was hers, which she refused to do. Defendant was arrested and charged with possession of a controlled substance and tampering with evidence.

{4} The jury convicted Defendant on both charges. The Court of Appeals concluded the charge of possession should be viewed as a lesser-included offense of the charge of tampering with evidence, and therefore convictions for both offenses violated double jeopardy. For the following reasons, we disagree.


{5} Whether Defendant's conviction for the violation of Sections 30-31-23(D) and 30-22-5 constitutes multiple punishment for the "same offense" as barred by the double jeopardy clause is a question of legislative intent, which we review de novo. See State v. Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140. To determine whether these statutes are the "same offense" for double jeopardy purposes, we apply a two-part test: (1) "whether the conduct underlying the offenses is unitary;" and, if so, (2) "whether the legislature intended to create separately punishable offenses." Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991).

{6} In applying the first part of this test, the Court of Appeals concluded Defendant's conduct was unitary. The State argued Defendant's conduct was not unitary because the jury could have concluded that Defendant possessed the cocaine before the police arrived and subsequently tampered with the evidence by throwing it out the window. Id. However, the court limited its assessment to the State's legal theory at trial, which was that Defendant was in possession when she ran to the bathroom and threw the bottle. Id.

{7} We do not agree with the Court of Appeals' analysis to the extent it suggests the State's legal theory necessarily determines whether conduct may be considered unitary. "The conduct question depends to a large degree on the elements of the charged offenses and the facts presented at trial." Swafford, 112 N.M. at 13, 810 P.2d at 1233. The proper analytical framework is whether "the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Id. at 14, 810 P.2d at 1234. If, after examining the elements and the facts, "it reasonably can be said that the conduct is unitary, then one must move to the second part of the inquiry." Id. On the other hand, separate punishments may be imposed if the offenses are "separated by sufficient indicia of distinctness." Id. at 13, 810 P.2d at 1233. To determine whether a defendant's conduct was unitary, we consider such factors as whether acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act. See State v. Dominguez, 2005-NMSC-001, ¶ 23, 137 N.M. 1, 106 P.3d 563.

{8} The jury was instructed that it could find Defendant committed possession of cocaine if it was on her person or in her presence, she exercised control over it, and she knew or believed it was cocaine or some other unlawful or regulated drug or substance. UJI 14-3102, 14-3130 NMRA 2005. The jury was instructed it could find Defendant tampered with evidence if she threw cocaine out the window and she intended to prevent the apprehension, prosecution or conviction of herself or others. UJI 14-2241 NMRA 2005. While the prosecutor's legal theory might have tied the State in proving tampering with evidence, see State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986), that theory did not limit the evidence the jury could consider to find Defendant guilty of possession.

{9} Based on the elements stated in the instructions and the evidence produced at trial, the jury had an independent factual basis for finding each act. The jury could reasonably find Defendant possessed cocaine and exercised control over it before the police arrived. The jury could reasonably find the act of possession was distinct from the act of tampering.

{10} Defendant testified she was inside the apartment for thirty to forty-five minutes before the police arrived; it was a one-room efficiency apartment. Defendant was in close proximity to drug paraphernalia commonly used to smoke and/or cook crack cocaine, as well as to possible cocaine users and/or dealers. She admitted handling the Tylenol bottle before police arrived, and she was warned not to handle the bottle. In addition, there was evidence to support a reasonable inference that the crack belonged to Defendant or her boyfriend. The jury could reasonably infer Defendant tried to destroy the evidence because she knew or believed there was an illegal substance inside the bottle before police arrived. Because Defendant threw the cocaine out the window after police arrived, rather than leaving the evidence for police to discover, the jury could have found two distinct acts, committed at different times, in different locations, with a different mental state and purpose, and separated by the intervening arrival of the police.

{11} Nevertheless, the jury might have based its verdict on the theory that Defendant possessed the cocaine when she tampered with evidence. In that event, the conduct was unitary. Because the jury could have based its verdict on the theory Defendant possessed the cocaine at the time she threw it out the window, we presume unitary conduct. See Foster, 1999-NMSC-007, ¶¶ 27-28 (applying presumption the legal theory that potentially violates double jeopardy is relevant in determining whether conduct is unitary when the State charged kidnapping under alternative theories and it was unclear from the verdict on which theory the defendant was convicted); State v. Crain, 1997-NMCA-101, ¶ 22, 124 N.M. 84, 946 P.2d 1095 (presuming conviction was based on a theory...

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