State v. Smith
| Decision Date | 06 May 1980 |
| Docket Number | No. 12816,12816 |
| Citation | 94 N.M. 379,610 P.2d 1208,1980 NMSC 59 |
| Parties | STATE of New Mexico, Petitioner, v. Albert Leo SMITH, III, Respondent. |
| Court | New Mexico Supreme Court |
Smith was convicted of four counts of trafficking with intent to distribute narcotic drugs. On appeal, the Court of Appeals found error in the failure to merge the four counts. We granted the State's petition for certiorari and reverse.
At issue is: (1) whether the Court of Appeals used the proper test in determining whether merger of the four counts into one was appropriate; and (2) whether one sale for a total sum of money to a single person of four packets containing different types of narcotic drugs is one criminal offense or four.
The four counts involve a sale by Smith to an informant. The officers seized from Smith's car a garbage bag containing approximately ten pounds of various kinds of pills separated into smaller bags. The four drugs on which Smith's convictions were based were percobarb, nucodan, percodan and donnagesic.
The Court of Appeals held: "(t)here being but one offense of trafficking in drugs, three of the trafficking convictions must be set aside."
The New Mexico Constitution provides in Art. II, Section 15 that no person shall "be twice put in jeopardy for the same offense." Therefore, all four of the convictions of Smith cannot stand if the sale constituted the "same offense."
In State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) (Tanton II), this Court discussed in detail when a criminal act consisted of only "one offense". We applied the same evidence test, that is, whether the same facts offered in support of one offense would sustain a conviction of the other. Id. at 335, 540 P.2d at 815. The facts offered in support of one of the counts here would sustain a conviction of all the other counts, except that each of the counts charged Smith with trafficking in a different drug.
In State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977), relied on by the Court of Appeals here in merging the four counts, the issue was whether the defendant could be charged with armed robbery and aggravated battery as a result of only one criminal act or occurrence. The Court of Appeals there held that the same evidence test did not apply, since the facts required to be proved for the two offenses differed. But the court also discussed whether one offense necessarily involved the other, and whether, under the elements test, the crimes charged were the same. Both of these approaches are valid in helping to determine whether a criminal act or occurrence constitutes more than "one offense". This distinction becomes germane when an issue arises, as in Sandoval, as to whether a lesser offense is necessarily included in a greater offense.
In the instant case there is no issue as to included offenses. The Court of Appeals here also relied on State v. Boeglin, 90 N.M. 93, 559 P.2d 1220 (Ct.App.1977), in which that court had held that the defendant could only be prosecuted for one larceny for stealing five pistols. The defendant had been convicted for five counts of larceny, one for each of the guns. The Court of Appeals there failed to apply the same evidence test...
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