State v. McCoy

• Decision Date: 19 May 1993
• Docket Number: 14019,14207 and 14230,Nos. 13575,14193,14020,s. 13575
• Citation: 116 N.M. 491,1993 NMCA 64,864 P.2d 307
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Barbara McCOY, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Maria C. COURSEY, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Kenny HODGE, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. David URIAS, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Annette HALSEY, a/k/a Annette Bryant, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Orleana Fay STACY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 307

864 P.2d 307

116 N.M. 491

STATE of New Mexico, Plaintiff-Appellee, v. Barbara McCOY, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Maria C. COURSEY, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Kenny HODGE, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. David URIAS, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Annette HALSEY, a/k/a Annette Bryant, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Orleana Fay STACY, Defendant-Appellant.

Nos. 13575, 14019, 14020, 14193, 14207 and 14230.

Court of Appeals of New Mexico.

May 19, 1993.

Certiorari Granted July 9, 1993.

[116 N.M. 493] Tom Udall, Atty. Gen., Joel Jacobsen, Bill Primm, Katherine Zinn, Gary Epler, and Matthew Ortiz, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Rita LaLUMIA, D. Scott Riedel, Bruce Rogoff, Sumita Mukhoty, Asst. Appellate Defenders, Santa Fe and Jonathan Miller, Albuquerque, for defendants-appellants.

OPINION

FLORES, Judge.

This opinion discusses six appeals by six different Defendants who were convicted of possession of cocaine. Because the appeals raise similar substantive and procedural issues, we consolidate these appeals on our motion.

Except for Defendant Bryant, each Defendant was subjected to random urinalysis testing as a condition of probation or parole. Defendant Bryant was required to undergo urinalysis testing after probation authorities received an anonymous phone call informing them that Bryant had been using cocaine. Each Defendant tested positive for cocaine. On the basis of the urine test results, each Defendant was charged with possession of cocaine. Defendants McCoy, Hodge, Stacy, and Bryant each pled guilty. Defendant Coursey was convicted by jury. Defendant Urias was convicted at a bench trial.

All six Defendants raise different combinations of virtually identical substantive issues. Essentially, they argue that (1) the drug test results alone are insufficient evidence of possession, jurisdiction, knowledge, and intent; (2) the application of the possession statute to these Defendants is unconstitutional for vagueness and overbreadth, and because it constitutes cruel and unusual punishment; and (3) the random drug test results should have been suppressed as the fruit of unreasonable searches and seizures.

Because McCoy, Hodge, Stacy, and Bryant each pled guilty, their appeals also raise similar procedural issues. The State has moved to dismiss McCoy's appeal on procedural grounds, and has argued similar grounds for affirmance in its answer briefs in the appeals of Hodge, Stacy, and Bryant. Specifically, the State argues that (1) Defendants' objections never sought a ruling from the trial court and therefore were insufficient to preserve any issues for review; (2) the guilty pleas admitted all the facts in the criminal informations; (3) the guilty pleas waive any challenge to the sufficiency of the evidence; and (4) reservation of the right to appeal did not reserve the sufficiency of the evidence issues. We affirm the convictions of Defendants McCoy, Hodge, Stacy, and Bryant. We reverse the convictions of Defendants Coursey and Urias.

DISCUSSION

Initially, most of the Defendants argue that the State has attempted to charge them with something that is not a crime. Specifically, Defendants point out that many of the criminal informations charge "possession of cocaine to-wit: by consumption." We disagree with Defendants' arguments regarding characterization of the charging instruments. We believe the criminal informations charge the usual crime of possession of cocaine. The additional language concerning consumption is simply additional information provided by the State to show how it planned to prove possession. As we discuss below, proof of consumption may prove possession in some cases but not others, depending on the individual circumstances and evidence. However, including the method of proof in the charging instrument does not change the basic charge of possession of cocaine that is made a crime pursuant to NMSA 1978, Section 30-31-23 (Cum.Supp.1992). See SCRA 1986, 5-205(A)(3) (Repl.1992) (means by which offense was committed is generally an unnecessary allegation); State v. Lucero, 79 N.M. 131, 132, 440 P.2d 806, 807 (Ct.App.1968) (unnecessary allegation may be disregarded as surplusage). Accordingly, we believe the criminal informations in these cases charge valid crimes under the laws of this state.

These cases raise issues of first impression in New Mexico concerning the State's ability to prove possession of cocaine based on urine samples that test positive for the presence of cocaine or its metabolites. Each appeal has different procedural or substantive facts that impact on the dispositions we reach. Therefore, for the sake of clarity, we first discuss the legal principles relevant to the issues presented by these appeals. We will then apply that law to the facts in each Defendant's appeal. We will then briefly address constitutional issues raised by some Defendants.

Defendants challenge the sufficiency of the evidence on a number of different grounds. First, they argue that the presence of cocaine in a urine test is insufficient proof of possession because each Defendant lacked the necessary degree of control over the drug. Second, Defendants argue the State lacked any proof of jurisdiction. Third, Defendants contend that proof of cocaine or its metabolites in a urine sample does not prove knowledge or intent to possess cocaine.

As the parties' briefs suggest, the starting point for Defendants' argument is State v. Yanez, 89 N.M. 397, 553 P.2d 252 (Ct.App.1976). In Yanez, the defendant was convicted of possession of morphine, largely on the basis of a positive urine test. The State argues that Yanez settles the question in New Mexico by allowing convictions for possession of a controlled substance on the basis of drug test results. However, as Defendants point out, in Yanez there was some additional significant corroborating evidence. In particular, the arresting officer saw the defendant participating in what appeared to be a drug transaction. He also saw the defendant purchase hypodermic needles at a drug store a short time later. Upon apprehending the defendant, the arresting officer noted fresh needle marks on the defendant's arm and a freshly used needle at the scene. The Yanez court relied on all of the above circumstances to hold that there was sufficient evidence of possession. See id. at 398, 553 P.2d at 253. Cf. Green v. State, 260 Ga. 625, 398 S.E.2d 360, 362 (1990) (positive drug test result merely circumstantial evidence of possession), cert. denied, 500 U.S. 935, 111 S.Ct. 2059, 114 L.Ed.2d 464 (1991); State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983). Thus, we agree with Defendants that Yanez is not dispositive on the issue of whether a positive drug test alone is sufficient evidence of possession.

Possession/Control

Defendants' first argument is that the presence of cocaine or its metabolites within the body is insufficient proof of possession because once a drug is in the body a person does not have control over the drug, nor does a person have the power to produce or dispose of the drug. See State v. Thronsen, 809 P.2d 941 (Alaska Ct.App.1991); Flinchpaugh, 659 P.2d at 211; State v. Lewis, 394 N.W.2d 212 (Minn.Ct.App.1986); State v. Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986) (en banc). In addition, Defendants argue that once the drug is ingested, the harm which the legislature sought to prevent has passed, namely the distribution and transportation of controlled substances. See Flinchpaugh, 659 P.2d at 212-13; Lewis, 394 N.W.2d at 217.

The State argues that Defendants' interpretation of possession and control is too narrow. First, the State argues that all of the out-of-state cases which hold that there is no control over the drug are simply wrong. The State argues that the cases focus exclusively on future use and enjoyment of the drug and do not look at present use and enjoyment of the drug. Moreover, the State argues there is ample authority to suggest that the legislature was trying to prevent the harm which results from the use of drugs, not just drug distribution. Cf. State v. Smith, 94 N.M. 379, 610 P.2d 1208 (1980) (four separate drug trafficking convictions upheld against double jeopardy challenge, partly based on public policy of easing diagnosis and treatment of drug use).

As the State suggests, many of the New Mexico cases that define possession in terms of control are constructive possession cases where the defendant is not in the same physical location as the drugs. See State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct.App.), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974); State v. Bauske, 86 N.M. 484, 525 P.2d 411 (Ct.App.1974). Also, it may be possible, as the State predicts, that by following the out-of-state cases that focus on the loss of control over the drug once it is in the body, people may be encouraged to simply consume their drugs to avoid prosecution. Nevertheless, we cannot ignore the definition of possession adopted by our Supreme Court or the numerous out-of-state cases that support Defendants' argument.

The definition of possession found in the definition section of the criminal uniform jury instructions, specifically, SCRA 1986, 14-130, provides that possession occurs when the thing possessed is "on" the person, not "in" the person. That instruction also provides that the person must exercise control over the thing possessed. Allowing the presence of drugs "in" the body to constitute possession would be contrary to our Supreme Court's definition of possession. See State v. Jennings, 102 N.M. 89, 691 P.2d 882 (Ct.App.) (Court of Appeals has no authority to set aside approved jury instructions), cert. quashed, 102 N.M. 88, 691...