State v. Gonzalez

• Decision Date: 07 February 2005
• Docket Number: No. 23,711.,23,711.
• Citation: 107 P.3d 547,137 N.M. 107
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Adrian GONZALEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

107 P.3d 547

137 N.M. 107

STATE of New Mexico, Plaintiff-Appellee, v. Adrian GONZALEZ, Defendant-Appellant.

No. 23,711.

Court of Appeals of New Mexico.

February 7, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Arthur W. Pepin, Elizabeth Blaisdell, Assistant Attorneys General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} The issues in this case are (1) whether the crime of bringing contraband into a jail in violation of NMSA 1978, § 30-22-14(B) (1976), is a strict liability offense and (2) whether fundamental error was committed when the district court failed to include a mental state as an essential element of the crime in its instructions to the jury. We hold that an essential element of the crime is knowing possession of the contraband and that failing to include this essential element in the jury instructions constituted fundamental error. We therefore reverse and remand for a new trial.

BACKGROUND

{2} A criminal information charged that on November 17, 2001, Defendant "did intentionally carry [c]ocaine into the confines of the Otero County Detention Center, a county jail," or in the alternative, that he "did intentionally have in his possession [c]ocaine, a controlled substance, knowing or believing it to be [c]ocaine" in violation of Section 30-22-14(B) and NMSA 1978, § 30-31-23(D) (1990).

{3} The evidence at trial was that Defendant was an inmate at the Otero County Detention Center (Detention Center). On November 17, 2001, Defendant returned to the Detention Center from his work release assignment. As Defendant changed out of his work clothes, a detention officer noticed that he was clutching a clear plastic bag containing a clear liquid. The officer confiscated the bag. Subsequent testing revealed that the liquid in the bag contained cocaine.

{4} Defendant testified he stopped by the home of a relative on his way back to the Detention Center, where he filled up the baggie with water. To the best of his knowledge, the baggie he brought into the Detention Center contained only water. The Detention Center employs a zero tolerance policy with regard to the work release program and anyone on work release is subject to random drug testing. Defendant's plan was to have the baggie of water with him in the locker area or his pod so that if he was selected for a random drug test, he would use it instead of urine.

{5} Defendant felt he needed to do this because he had already been subject to two random drug tests while on work release. The first test was positive for drugs, so Defendant requested a retest be performed by a certified medical officer instead of a regular detention employee. The retest was negative for the presence of drugs. The second random sample also tested positive for drugs, and Defendant again requested a retest by a certified medical officer. However, the second time, the retest was positive for drugs. When Defendant tested positive for drugs the second time, the Detention Center called his employer, and he lost his job. Defendant was worried that if he tested positive for drugs again, he would lose his current job as well and not be able to provide financial support for his family.

{6} The district court instructed the jury that to find Defendant guilty of bringing contraband into the jail, the state was required to prove the following essential elements beyond a reasonable doubt:

1. The Defendant carried contraband, to wit: cocaine into the confines of the Otero County Detention Center;

2. This happened in New Mexico on or about the 17th day of November, 2001.

{7} The jury was also instructed that it had to find Defendant acted with a general intent as follows:

In addition to the other elements of bringing contraband into a place of imprisonment and possession of cocaine, the [S]tate must prove to your satisfaction beyond a reasonable doubt that [Defendant] acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether [Defendant] acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, his conduct, and any statements made by him.

The jury found Defendant guilty of bringing contraband into a place of imprisonment, and he appeals.

DISCUSSION

A. Strict Liability Offense

{8} We review de novo whether Section 30-22-14(B) is a strict liability crime. See State v. Torres, 2003-NMCA-101, ¶ 5, 134 N.M. 194, 75 P.3d 410

(stating that analysis of whether unlawful possession of a firearm in a licensed liquor establishment is a strict liability crime involves the construction of a statute, which is reviewed de novo).

{9} A violation of Section 30-22-14(B) is a fourth degree felony. It states, "[b]ringing contraband into a jail consists of carrying contraband into the confines of a county or municipal jail." Id. Section 30-22-14(C)(4) includes cocaine in its definition of "contraband." Defendant argues that commission of the act — bringing contraband into a jail — must be accompanied by a mental state, or mens rea, for the crime to be committed. He further contends that the necessary mental state is knowledge of possession of the contraband. The State responds that Defendant's knowledge is irrelevant, contending that bringing contraband into a jail is a strict liability crime which does not have a mens rea element. For the reasons which follow, we agree with Defendant.

{10} "A crime generally consists of two elements, a physical, wrongful deed (the `actus reus'), and a guilty mind that produces the act (the `mens rea')." 21 Am.Jur.2d Criminal Law § 126, at 213 (1998); see State v. Leal, 104 N.M. 506, 509, 723 P.2d 977, 980 (Ct.App.1986)

("Ordinarily, there are two components to a crime: an intent or mental state plus an overt act."). "`Mens rea' refers to a mental state... which expresses the intent necessary for a particular act to constitute a crime." 21 Am.Jur.2d supra, at 213; see State v. Austin, 80 N.M. 748, 750, 461 P.2d 230, 232 (Ct.App.1969) (stating a "criminal intent ... is a mental state ... [that is] a conscious wrongdoing").

{11} On the other hand, some crimes do not require the existence of a mental state, or mens rea. "A strict liability crime is [a crime] which imposes a criminal sanction for an unlawful act without requiring a showing of criminal intent." State v. Harrison, 115 N.M. 73, 77, 846 P.2d 1082, 1086 (Ct.App.1992); see Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L.Rev. 401, 417 (1993) (stating that a strict liability crime is a crime "for which liability is imposed irrespective of the defendant's knowledge or intentions, that is, crimes without a mens rea requirement"). Even "innocent-minded and blameless people" may be convicted of a strict liability crime. 1 Wayne R. LaFave, Substantive Criminal Law § 5.5, at 382 (2d ed.2003).

{12} Section 30-22-14(B) is silent with respect to any required mens rea. However, this does not mean it is a strict liability offense. See Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993)

(stating when a criminal statute is silent about whether a mens rea element is required, we do not assume that the legislature intended to create a strict liability crime). Since at least 1917, we have followed the common law that where an act is prohibited and punishable as a crime, it is construed as also requiring the existence of a criminal intent. State v. Blacklock, 23 N.M. 251, 254, 167 P. 714, 715 (1917) ("As a general rule, where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law and the existence of a criminal intent is essential." (internal quotation marks and citation omitted)). See, e.g., Santillanes, 115 N.M. at 218,

849 P.2d at 361 ("[W]e presume criminal intent as an essential element of the crime unless it is clear from the statute that the legislature intended to omit the mens rea element." (emphasis omitted)); State v. Craig, 70 N.M. 176, 180, 372 P.2d 128, 130 (1962) (same); State v. Shedoudy, 45 N.M. 516, 524, 118 P.2d 280, 285 (1941) ("Generally ... when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it." (citation omitted)); Torres, 2003-NMCA-101, ¶ 7,

134 N.M. 194,

75 P.3d 410 ("Generally, criminal intent is an element of every crime. If it is not expressly included as an element, we presume an intent requirement.") (internal quotation marks and citations omitted); State v. Fuentes, 85 N.M. 274, 276, 511 P.2d 760, 762 (Ct.App.1973) (same); Austin, 80 N.M. at 750,

461 P.2d at 232 (same).

{13} The legislature may create a strict liability crime and provide that a violator is guilty even without a criminal intent; however, the legislative intent to do so must clearly appear. See Santillanes, 115 N.M. at 218,

849 P.2d at 361 (stating that "it is well settled that we presume criminal intent ... unless it is clear from the statute that the legislature intended to omit the mens rea element" (emphasis omitted)); Craig

70 N.M. at 180,

372 P.2d at 130 (same); Shedoudy, 45 N.M. at 524, 118 P.2d at 285 ("But the legislature may forbid the doing of an act and make its commission criminal, without regard to the intent with which such act is done; but in such case it must clearly appear from the Act (from its language or clear inference) that such was the legislative intent."); State v. Herrera, 111 N.M. 560, 563, 807 P.2d 744, 747 (Ct.App.1991) (stating that the legislature may create a strict liability crime and provide that a violator is guilty even without a...