State v. Lopez, 091321 NMCA, A-1-CA-38975

Docket NºA-1-CA-38975
Opinion JudgeJ. MILES HANISEE, Chief Judge.
Party NameSTATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL LOPEZ, Defendant-Appellant.
AttorneyHector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Joelle N. Gonzales, Assistant Appellate Defender Santa Fe, NM for Appellant
Judge PanelWE CONCUR: JENNIFER L. ATTREP, Judge, SHAMMARA H. HENDERSON, Judge.
Case DateSeptember 13, 2021
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

MICHAEL LOPEZ, Defendant-Appellant.

No. A-1-CA-38975

Court of Appeals of New Mexico

September 13, 2021

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Lisa B. Riley, District Judge.

Hector H. Balderas, Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Joelle N. Gonzales, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

J. MILES HANISEE, Chief Judge.

{¶1} Defendant appeals his convictions of trafficking controlled substances and tampering with evidence, asserting that the trial evidence was insufficient to support those convictions. [MIO 1] This Court issued a notice of proposed summary disposition proposing to affirm the district court, noting that the evidence was sufficient to support a finding that Defendant intended to possess the drugs found in his anal cavity while he was being booked into the Eddy County Detention Center. [CN 5] Defendant has filed a memorandum in opposition to that disposition, asserting that the trial evidence did not support findings that he intended to distribute those drugs or that he hid the drugs. [MIO 4, 8] Having duly considered that memorandum, we remain unpersuaded and affirm.

{¶2} With regard to his trafficking conviction, Defendant asserts that evidence of the amount of drugs at issue was insufficient to establish his intent to distribute those drugs. [MIO 4] In doing so, Defendant relies upon State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246. In that case, this Court reversed a trafficking conviction for lack of any evidence establishing the concentration of a drug, or how long it would take a single user to consume the amount found. Id. ¶ 22. We concluded that intent to distribute could not be determined solely from the amount of drugs because the jury was unable to assess whether that amount was more consistent with personal use solely on the basis of "common knowledge." Id. ¶ 23 (internal quotation marks omitted). Becerra is distinguishable.

{¶3} In this case, the jury was not tasked with assessing the quantity of drugs based solely upon...

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