State v. Kent
| Decision Date | 17 August 2006 |
| Docket Number | No. 25,483.,25,483. |
| Citation | 2006 NMCA 134,145 P.3d 86 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Valerie KENT, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Valerie Kent appeals her conviction of the crime of accessory to attempt to manufacture methamphetamine on the grounds of insufficient evidence and error in denying admission of a photograph. We affirm.
{2} The State presented three law enforcement witnesses. One or more of the officers witnessed a person they identified as Defendant purchase ten boxes of matches at a convenience store. Knowing that the striker plates on the matchboxes consist of red phosphorous, a key ingredient for the manufacture of methamphetamine, the officers followed Defendant, who was driving a grey Chevy pickup, to a second convenience store where Defendant purchased ten more boxes of matches. The officers then followed Defendant to a third convenience store where she purchased ten more boxes of matches. This occurred once again at a fourth convenience store, where Defendant purchased five more boxes of matches. The officers knew from their training and experience that purchases of large quantities of matchbooks, particularly thirty-five boxes of matches indicated the likelihood of a methamphetamine lab. At least two of the officers involved specifically identified Defendant as the person who purchased the matches.
{3} The officers then followed Defendant to an apartment, where they continued surveillance until almost midnight, when a green minivan pulled up with a female inside. Two officers testified that a white bag was put into the minivan. Another officer testified that the two females transferred items from the pickup to the minivan. The pickup and minivan then left the apartment location and stopped at the residence of Sherman Kent. After that, the two vehicles traveled to a Wal-Mart store. The convenience stores and the Wal-Mart store are located in Portales, New Mexico.
{4} Defendant and the other female, identified as Defendant's sister, Jan Carter, entered Wal-Mart where one or both purchased a gallon of Coleman fuel and a gallon of distilled water. Those items were placed in the minivan. The officers knew that these items were also ingredients used to manufacture methamphetamine. After the purchase, Ms. Carter drove the minivan to Clovis, New Mexico. Defendant and Sherman Kent drove off in the pickup. The officers followed the minivan to Clovis because the items about which they were concerned were in the minivan. They arrested Ms. Carter and obtained the items they had seen transferred into the minivan. The items included the matchboxes. Defendant and Sherman Kent drove off in the pickup. Early the next morning, Defendant was asked to come to the Portales police station because her sister had been arrested. Defendant agreed to go to the police station. During an interview with the police officers, Defendant admitted that she had purchased all of the matches, that she knew that the matches were going to be used to manufacture methamphetamine, and that she knew that matchboxes were scraped for the red phosphorous that was used in the manufacture of methamphetamine. Defendant also admitted that on previous occasions she had bought matches for her sister for the manufacture of methamphetamine.
{5} At trial, Defendant did not claim that she was not at the apartment where the officers had seen her with her sister, nor did she claim that she did not go to Wal-Mart. Defendant testified that she paid for the items purchased at Wal-Mart. The officer who witnessed the two sisters in Wal-Mart testified that it was Ms. Carter that purchased the items.
{6} However, Defendant testified that it was her sister who purchased the matches at the various convenience stores, and that the officers had mistaken the identity of the person who purchased the matches. In support of this defense, Defendant sought to introduce a photograph of Ms. Carter to show that there was a striking resemblance between the sisters. The district court refused to admit the photograph, agreeing with the State that the evidence should be excluded under Rule 5-508 NMRA for Defendant's failure to give notice of an alibi defense.
{7} Defendant was convicted of accessory to attempt to commit the felony of trafficking a controlled substance by manufacturing. The trafficking crime 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." NMSA 1978, § 30-31-20(A)(1) (1990) (amended 2006). Methamphetamine is a Schedule II controlled substance. NMSA 1978, § 30-31-7(A)(3)(c) (2005). Manufacture "means the production, preparation, compounding, conversion or processing of a controlled substance." NMSA 1978, § 30-31-2(M) (2006). "Attempt to commit a felony consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission." NMSA 1978, § 30-28-1 (1963).
{8} The jury was instructed that to convict Defendant of attempt to manufacture methamphetamine it had to find, beyond a reasonable doubt, that (1) Defendant intended to commit the crime of trafficking a controlled substance (methamphetamine) by manufacturing, and (2) Defendant began to do an act that constituted a substantial part of the crime of trafficking a controlled substance (methamphetamine) by manufacturing but failed to commit the crime of trafficking a controlled substance (methamphetamine) by manufacturing. See id.; UJI 14-2801 NMRA. The jury was also instructed that it could convict Defendant of attempt to manufacture under a theory of accessory liability if it found, beyond a reasonable doubt, that (1) Defendant intended that the crime be committed, (2) an attempt to commit the crime was committed, and (3) Defendant helped, encouraged, or caused the attempt to commit the crime. See NMSA 1978, § 30-1-13 (1972); UJI 14-2820 NMRA.
{9} Defendant claims on appeal that the conviction was based on insufficient evidence and that the district court's refusal to admit the photograph of Ms. Carter was error and violated Defendant's due process right to present a defense.
{10} Substantial evidence review requires analysis of whether direct or circumstantial substantial evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect to every element essential for conviction. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988); State v. Brenn, 2005-NMCA-121, ¶ 4, 138 N.M. 451, 121 P.3d 1050. We determine whether a rational factfinder could have found that each element of the crime was established beyond a reasonable doubt. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992); Brenn, 2005-NMCA-121, ¶ 4, 138 N.M. 451, 121 P.3d 1050. "We view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict." State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993); Brenn, 2005-NMCA-121, ¶ 4, 138 N.M. 451, 121 P.3d 1050. Appellate courts do not weigh the evidence or substitute any judgment for that of the jury. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978); Brenn, 2005-NMCA-121, ¶ 4, 138 N.M. 451, 121 P.3d 1050.
{11} We review de novo whether an insurmountable statutory ambiguity persists such that we should apply the rule of lenity. See State v. Davis, 2003-NMSC-022, ¶¶ 6, 14-15, 134 N.M. 172, 74 P.3d 1064; see also State v. Rael, 1999-NMCA-068, ¶ 5, 127 N.M. 347, 981 P.2d 280 ().
{12} Defendant contends that "[t]he State failed to prove that [Defendant] took a single step toward manufacturing methamphetamine, let alone `an act that constituted a substantial part of manufacturing.'" Defendant argues: (1) the purchase of boxes of matches is not producing, preparing, compounding, converting or processing; (2) there is no evidence that Defendant went to Ms. Carter's home in Clovis or that the officers found any necessary ingredients inside that home for manufacture of methamphetamine by any means; and (3) there is no evidence as to the amount of red phosphorous needed to manufacture methamphetamine, why the number of matches is relevant, or that the boxes of matches purchased were altered in any way.
{13} In addition, Defendant contends that under the rule of lenity this Court should conclude that Section 30-28-1 should not be extended to this circumstance of "an otherwise lawful purchase of goods given to someone that may or may not use them for an illegal purpose." Defendant analogizes the circumstances in this case to those involving the conspiracy charge in State v. Maldonado, 2005-NMCA-072, 137 N.M. 699, 114 P.3d 379. The issue in Maldonado was "a recurring question in the law of conspiracy[.]" Id. ¶ 9. The majority considered the issue to be one of statutory construction, subject to de novo review. Id. In Maldonado, the Court held that the crime of conspiracy as defined and intended by the Legislature did not extend to the defendant's actions and knowledge. See id. ¶¶ 13, 18. In Maldonado, the defendant purchased one box and was in the process of attempting to shoplift four more boxes of pseudoephedrine tablets with the intent to sell them to another person whom he knew used such goods for the...
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