State v. Garcia

• Citation: 2004 NMCA 66,135 N.M. 595,92 P.3d 41
• Decision Date: 05 April 2004
• Docket Number: No. 23,353.,23,353.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reymundo Carlos GARCIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

92 P.3d 41

135 N.M. 595

2004 NMCA 66

STATE of New Mexico, Plaintiff-Appellee, v. Reymundo Carlos GARCIA, Defendant-Appellant.

No. 23,353.

Court of Appeals of New Mexico.

April 5, 2004.

Certiorari Granted May 4, 2004.

Patricia A. Madrid, Attorney General, Santa Fe, M. Victoria Wilson, Assistant Attorney General, Albuquerque, for Appellee.

John B. Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, for Appellant.

Certiorari Granted, No. 28,631, May 4, 2004.

OPINION

ALARID, J.

{1} Defendant, Reymundo Carlos Garcia, appeals from his convictions for being a felon in possession of a firearm, contrary to NMSA 1978, § 30-7-16 (1981, as amended through 1987) and for possession of an alcoholic beverage in an open container while in a motor vehicle, contrary to NMSA 1978, § 66-8-138 (1989). We reverse Defendant's conviction for being a felon in possession of a firearm on the ground that the evidence was insufficient to establish beyond a reasonable doubt that Defendant was in possession of a firearm; we affirm Defendant's conviction for possession of an alcoholic beverage in an open container.

BACKGROUND

{2} At around midnight on the evening of April 25, 2001, Sgt. Jason Hatch and Officer John Emmons of the Bosque Farms Police Department and Deputy Donald Derrick of the Valencia County Sheriff's Department were taking a coffee break at a convenience store. They observed a car slowly drive through the parking lot. Defendant was seated in the front passenger's seat of the car, a 1986, two-door Buick Regal sedan. Sgt. Hatch became suspicious because the car displayed a "dealer demonstration tag" while being driven after normal business hours. Sgt. Hatch followed in his patrol car. Officer Emmons and Deputy Derrick followed in separate vehicles. Sgt. Hatch observed the subject car swerve across the white "fog line," almost hitting the curb. Sgt. Hatch engaged his emergency equipment. The subject car pulled into a gas station, stopping near one of the gas pumps.

{3} Before Sgt. Hatch's car had come to a full stop, Defendant left the subject car and faced to the rear with the right side of his body "slouched down towards the side of the vehicle." Defendant looked at Sgt. Hatch, giving him a "thousand yard stare . . . . [k]ind of a blank look . . . almost as if . . . just looking through me as if I'm not there." Because of the way in which Defendant was leaning against the car, Sgt. Hatch could not see the right side of Defendant's body. Sgt. Hatch left his patrol car, drew his gun holding it at "a low ready position," and ordered Defendant back into the car. Defendant did not immediately comply and Sgt. Hatch again ordered Defendant to get back into the car.

{4} When Defendant was again seated in the car, Sgt. Hatch approached the driver and requested a driver's license, registration, and proof of insurance. By this time Officer Emmons and Deputy Derrick had arrived. The driver had a New Mexico I.D. card, but no driver's license, registration, or proof of insurance. After learning that the driver had no license, Sgt. Hatch directed Officer Emmons to identify the passenger and determine whether the passenger had a valid driver's license. Defendant told Officer Emmons that he was "Ray [—]Reymundo." Officer Emmons ran a check on Defendant by radio and the dispatcher identified Defendant as Reymundo Garcia.

{5} As Officer Emmons was writing out citations to the driver, Sgt. Hatch stood at the rear of the car on the passenger's side. He observed a handgun in a holster on the floor of the car protruding from beneath the rear of the passenger seat. The occupants were ordered from the car and were frisked and handcuffed. Sgt. Hatch observed a one inch by five inch by one-quarter inch clip of bullets lying in the "palm" of the front passenger seat, which was badly worn and covered with a towel or other cloth. Next to the gun on the floor was a partially empty bottle of beer. The officers seized the gun, which was loaded, and the extra clip. Deputy Derrick, who was familiar with the type of gun, unloaded it. The beer bottle was not seized. Defendant denied any knowledge of the handgun, explaining to the officers that because of prior felony convictions he was not allowed to be around firearms. Defendant admitted that he had been drinking in the car. Because Defendant had admitted to a prior felony, the officers ran his name through records a second time and were informed by dispatch that Defendant's record showed a prior felony conviction. Defendant was charged with concealing identity, an open container violation, and being a felon in possession of a firearm. In addition to various Motor Vehicle Code violations, the driver was charged with negligent use of a firearm.

{6} Defendant's case was tried to the court without a jury. Neither occupant of the car testified at trial. The State called Sgt. Hatch and Deputy Derrick as its only witnesses. The State offered no evidence as to who actually owned the car or how the driver and Defendant came to be in it. There was no evidence of the nature of the relationship of the driver and Defendant. The State stipulated that no fingerprints were found on the gun. Defense counsel stipulated that Defendant was a convicted felon. Defendant objected on hearsay grounds to Sgt. Hatch's testimony as to what Defendant had told Officer Emmons. The district court ruled that Sgt. Hatch's testimony as to Defendant's statements to Officer Emmons would be admitted "just to establish why he's doing what he did." Toward the end of the State's direct examination of Sgt. Hatch, the State informed the trial court that it would not proceed on the concealing identity charge. At the conclusion of the State's case, the trial court denied Defendant's motion for a directed verdict on the remaining charges. Defendant did not put on any evidence. The trial court found Defendant guilty of possession of a firearm by a felon and possession of an open container containing an alcoholic beverage in a motor vehicle.

DISCUSSION

1. Sufficiency of the Evidence of Possession of a Firearm

{7} Section 30-7-16(A) makes it unlawful for a felon to "possess" a firearm. The State concedes that it did not prove that Defendant had the gun on his person. The State relies on a theory of "constructive" possession: i.e., that Defendant knew the gun was present and exercised control over it. See State v. Morales, 2002-NMCA-052, ¶¶ 28-29, 132 N.M. 146, 45 P.3d 406

(discussing constructive possession in the context of a prosecution for possession of heroin); see also UJI 14-130 NMRA 2004. We focus on the sufficiency of the evidence establishing that Defendant had actual knowledge of the presence of the firearm and exercised control over it.

{8} Sufficiency-of-the-evidence claims in criminal cases are reviewed under the following standards:

[W]e review the record, marshaling all evidence favorable to [the] trial court's findings. If evidence is in conflict, or credibility is at issue, we accept any interpretation of the evidence that supports the trial court's findings, provided that such a view of the evidence is not inherently improbable. We determine whether the evidence supports any conceivable set of rational deductions and inferences that logically leads to the finding in question. We must be satisfied that the evidence was sufficient to establish the facts essential to conviction with the level of certainty required by the applicable burden of proof. To support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached a subjective state of near certitude of the guilt of the accused.

State v. Wynn, 2001-NMCA-020, ¶ 5, 130 N.M. 381, 24 P.3d 816 (internal citations and quotation marks omitted).

{9} In conducting sufficiency-of-the-evidence review in a criminal case, we are constitutionally required to take into account the heightened, beyond-a-reasonable-doubt burden of proof: evidence that is sufficient to allow a rational juror to make a finding adverse to a defendant under a preponderance-of-the-evidence standard will not necessarily suffice to allow a rational factfinder to reach the subjective state of certitude required by the beyond-a-reasonable-doubt standard. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (noting that constitutional review of the sufficiency of the evidence to support a criminal conviction requires appellate court to consider the heightened level of certitude required by proof beyond a reasonable doubt).

{10} The requirement of proof beyond a reasonable doubt derives from the distinction between "demonstrative" and "moral" evidence. Victor v. Nebraska, 511 U.S. 1, 10, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994):

Demonstrative evidence has for its subject abstract and necessary truths, or the unchangeable relations of ideas. Moral evidence has for its subject the real but contingent truths and connections, which take place among things actually existing . . . .

Id. (quoting 1 Works of James Wilson 518 (J. Andrews ed. 1896) (ellipsis in quoted material and internal quotation marks omitted)). Proof beyond a reasonable doubt is equivalent to proof "to a moral certainty," and refers to the highest degree of confidence with which an historical or physical fact can be known. Id. at 11-12, 114 S.Ct. 1239; Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 Notre Dame L.Rev. 1165, 1178-80 (2003).

{11} The requirement of proof beyond a reasonable doubt "is a prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

There is always in litigation a margin of error, representing error in factfinding, which both parties must take into

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