State v. Grove
| Decision Date | 11 June 1971 |
| Docket Number | No. 651,651 |
| Citation | 486 P.2d 615,82 N.M. 679,1971 NMCA 86 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Guy Steven GROVE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The basic issue in this appeal is whether there is substantial evidence to support defendant's conviction of contributing to the delinquency of a minor. Section 40A--6--3, N.M.S.A.1953 (Repl.Vol.6).
Nowhere in the record is the State's theory of 'contributing' identified. No bill of particulars was sought; no opening statement was made; the closing arguments were not reported; the instructions do not reveal a theory. In the State's brief it is asserted that defendant '* * * allowed and condoned the smoking of marijuana by the juvenile, * * *' and that defendant was a 'partner in the contraband' which a police informer sought to buy. Thus, the asserted delinquency to which defendant allegedly contributed was a violation of the law of the State or conduct injurious to the juvenile's morals. See State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969).
Defendant, defendant's brother and Simmons were living in a house located at 1205 Ash in Clovis. On Sunday, the police informer went to the house and sought to buy marijuana from a person named Williams and the juvenile involved in this case. No supply was available. Later that day, the informer, the juvenile and Simmons went to Portales in an attempt to obtain marijuana. They were unsuccessful. There is no evidence that defendant was in anyway involved in these Sunday activities.
On Monday, the juvenile, Simmons and Ray Goodman went to Albuquerque and purchased marijuana, returning to Clovis at approximately 11:30 p.m. Prior to the trip to Albuquerque by the juvenile, defendant knew of the trip and its purpose and refused 'to take part in it.'
None of the foregoing is relied on as evidence to support the 'contributing conviction' of defendant.
There is evidence that after the return to Clovis, and at about 1:30 a.m. on Tuesday, the informer went to the house at 1205 Ash and at that time was taken to a bedroom by the juvenile. The informer identified those present at this time, besides himself, as the juvenile, 'Simmons and the two colored guys.' According to the informer, he pretended to smoke what appeared to be a marijuana cigarette and the other four present did smoke this cigarette. The informer then asked if '* * * they had anything they wanted to sell * * *' and was told '* * * they wanted to wait for Steve, * * *' The informer testified that defendant was not involved in any of these transactions; that he had never seen the defendant prior to seeing him in the courtroom at defendant's trial.
The juvenile's testimony as to the events in the early morning of Tuesday is to the same effect as the informer's testimony. In addition, the juvenile testified that after the informer left 1205 Ash, the two Negroes also departed; that the defendant and a person named Hon then came to the house, but only shortly before the police arrived. Other evidence is also to the effect that defendant was not at the house during the smoking of the marijuana cigarette and the informer's attempt to buy marijuana.
The evidence which connects defendant with the juvenile's marijuana smoking and the attempted purchase by the informer is as follows. When the informer went to the house at 1:30 a.m. he was under police surveillance. One officer went to the side of the house and from a distance of approximately 8 feet looked into a bedroom window for five minutes and saw the juvenile and defendant 'laying on the bed.' The officer couldn't see anyone else. This observation occurred at a time when the informer testified he was present in the house, and about the time of the marijuana smoking and the attempted purchase. The State asserts that combining this portion of the informer's testimony with the officer's testimony permits the inference that defendant '* * * allowed and condoned the smoking of marijuana by the juvenile, * * * and was present when the juvenile was negotiating a sale of this contraband. * * *' It does not.
We accept the officer's testimony as true since, on a review of the sufficiency of the evidence to support a guilty verdict, we view the evidence in the light most favorable to the State. State v. Malouff, 81 N.M. 619, 471 P.2d 189 (Ct.App.1970). The officer's testimony is only...
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...790 P.2d 1032 (1990), Defendant contends that there is no evidence that he started to traffic in cocaine. Citing State v. Grove, 82 N.M. 679, 486 P.2d 615 (Ct.App.1971); and State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967), Defendant asserts that "[m]ere presence is not evidence of parti......
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State v. Henderson
...conduct which may properly be considered when applying the concept of delinquency to the behavior at issue. Cf. State v. Grove, 82 N.M. 679, 680, 486 P.2d 615, 616 (Ct.App.1971) (discussing the delinquent act alleged as "a violation of the law of the State or conduct injurious to the juveni......
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State v. Browder
... ... See State v. Salazar, 78 N.M. 329, 431 P.2d 62 (1967). Defendant was present in the house where the bits were found, but presence alone is insufficient. State v. Grove, 82 N.M. 679, 486 P.2d 615 (Ct.App.1971); State v. Harrison, 81 N.M. 324, 466 P.2d 890 (Ct.App.1970) ... Here, there is a total absence of evidence to support the conviction. In addition, there is evidence of an exculpatory nature. Defendant testified he had been in the Fort ... ...