State v. Serna

• Decision Date: 06 October 2021
• Docket Number: A-1-CA-38918
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JUDY K. SERNA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JUDY K. SERNA, Defendant-Appellant.

No. A-1-CA-38918

Court of Appeals of New Mexico

October 6, 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 COLFAX COUNTY Melissa A. Kennelly District Judge.

Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart Assistant Attorney General Albuquerque, NM for Appellee.

Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

GERALD E. BACA, JUDGE.

{¶1} Following a jury trial, Defendant appeals her convictions for trafficking and drug possession. On appeal, Defendant challenges the sufficiency of the evidence to support her trafficking conviction and argues that her right to a speedy trial was violated. Unpersuaded, we affirm.

DISCUSSION

I. Sufficiency of the Evidence

{¶2} On appeal, Defendant challenges the sufficiency of the evidence supporting her conviction for trafficking. "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). The reviewing court "view[s] the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

{¶3} "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883. At trial, the jury was instructed that, to find Defendant guilty of possession with intent to distribute, the State was required to prove the following elements beyond a reasonable doubt:

1. [D]efendant had methamphetamine in her possession;

2. [D]efendant knew it was methamphetamine or believed it to be some drug or other substance the possession of which is regulated or prohibited by law;

3. [D]efendant intended to transfer it to another;

4. This happened in New Mexico on or about the 1st day of December, 2016.

See NMSA 1978, § 30-31-20(A)(3) (2006) (describing possession with intent to distribute). Defendant's challenge relates only to the third element; she contends that insufficient evidence demonstrated her intent to transfer the methamphetamine to another.

{¶4} "Intent to distribute may be proved by inference from the surrounding facts and circumstances." State v. Becerra, 1991-NMCA-090, ¶ 22, 112 N.M. 604, 817 P.2d 1246. "Intent to distribute may be inferred when the amount of a controlled substance possessed is inconsistent with personal use." State v. Curry, 1988-NMCA-031, ¶ 7, 107 N.M. 133, 753 P.2d 1321.

{¶5} Four baggies of methamphetamine containing varying amounts totaling 5.9 grams were found at Defendant's residence. Three witnesses testified that this amount of methamphetamine was unusually large and inconsistent with personal use. The State's drug analyst expert witness, who examined the drugs at issue, testified that in her over twenty years of drug analysis experience, "usually a lot of our cases are under a gram[, ]" that two of the baggies in the present case were instead over a gram, and that the amount of 3.46 grams found in one baggie was "a larger amount." One of the arresting officers testified that, in his experience, when people have only possessed methamphetamine for personal use, he has seen "very tiny, small amounts in [one] individual baggie[, ]" and that the baggies in this case that contained a larger amount were not like anything he has seen for personal use. Another arresting officer, whom the defense stipulated had drug investigation and prosecution expertise, testified that usually he finds small amounts of drugs on people for their personal use, and stated that the amount of methamphetamine contained in one of the baggies "would lead me to wonder if this stuff was being trafficked."

{¶6} In addition, different sized baggies, a scale, and a list of names with dollar amounts were also found at Defendant's residence. See State v. Vallejos, 1998-NMCA-151, ¶ 22, 126 N.M. 161, 967 P.2d 836 (stating that scales were evidence of a defendant's intent and inconsistent with personal use). One of the officers testified that the packaging of one of the larger baggies also contributed to his impression that the methamphetamine was not simply for personal use and was potentially being trafficked. Cf. State v. Bejar, 1984-NMCA-031, ¶ 14, 101 N.M. 190, 679 P.2d 1288 (determining that sufficient evidence supported a trafficking conviction when there was an inference that drugs had been flushed down the toilet and, "two packages of balloons were found in the house and one expert testified that balloons are used for packaging heroin and, additionally, the other paraphernalia for personal use of heroin was found in the house"). We conclude that the amount of methamphetamine, as well as the packaging materials, scale, and list of names amounted to sufficient evidence to permit the jury to infer that Defendant intended to distribute. See Becerra, 1991-NMCA-090, ¶ 22.

{¶7} Defendant states that the above items were gathered by officers and "staged them for photographs." She asserts that the baggies were for her personal use drugs and jewelry making, the scale was to weigh food and beads, and the cash and list of names and amounts of money were from her house cleaning work. However, the jury was free to reject Defendant's alternative explanation for the presence of all the items. See Rojo, 1999-NMSC-001, ¶ 19 ("Contrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the d]efendant's version of the facts.").

{¶8} In light of the foregoing, we conclude that sufficient evidence supported Defendant's conviction.

II. Speedy Trial

{¶9} As a threshold matter, we first address the State's contention that Defendant's speedy trial challenge is not adequately preserved. Specifically, the State argues that Defendant failed to serve her second motion to dismiss for speedy trial violations on the prosecutor and, as a result, the State had "no adequate or real opportunity to present or develop factual evidence" in response to the second motion.

{¶10} "In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon." State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056; see Rule 12-321(A) NMRA ("To preserve a question for review it must appear that a ruling or decision by the trial court was fairly invoked."). Defendant filed motions and presented her arguments on her speedy trial claims to the district court at two different points in the case, and therefore invoked a specific ruling from the district court and adequately preserved the issue for our review. We are unpersuaded by the State's contention that it was unable to counter Defendant's motions, particularly in light of the fact that the State filed a response to Defendant's first motion. Moreover, the State's alleged late notice of Defendant's second motion does not impact our conclusion that the district court had an adequate opportunity to consider and rule on the issue. See Montoya, 2015-NMSC-010, ¶ 45; cf. State v. Valdez, 1990-NMCA-018, ¶ 15, 109 N.M. 759, 790 P.2d 1040 ("Because [the] defendant did not raise the constitutional claim until this appeal, there were no district court proceedings to develop fully the facts relating to the . . . factors, and the district court had no opportunity to weigh them."). Concluding that this issue was preserved, we proceed to the merits of the issue.

{¶11} "In determining whether a defendant's speedy trial right was violated, [New Mexico] has adopted the United States Supreme Court's balancing test in Barker v. Wingo, 407 U.S. 514 . . . (1972)." State v. Smith, 2016-NMSC-007, ¶ 58, 367 P.3d 420.

Under the Barker framework, courts weigh "the conduct of both the prosecution and the defendant" under the guidance of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness and manner in which the defendant asserted his speedy trial right; and (4) the particular prejudice that the defendant actually suffered.

Id. (quoting State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387). "In analyzing these factors, we defer to the district court's factual findings that are supported by substantial evidence, but we independently review the record to determine whether a defendant was denied his [or her] speedy trial right and we weigh and balance the Barker factors de novo." State v. Flores, 2015-NMCA-081, ¶ 4, 355 P.3d 81.

A. Length of Delay

{¶12} "The length of delay serves two purposes under the speedy trial analysis." State v. Spearman 2012-NMSC-023, ¶ 20, 283 P.3d 272. First, it "acts as a triggering mechanism requiring further inquiry into the Barker factors once the delay has reached a specified amount of time, depending on the difficulty of the case." Id. (internal quotation marks and citation omitted). "A delay of trial of twelve months is...