State v. Villalobos

• Citation: 1995 NMCA 105,905 P.2d 732,120 N.M. 694
• Decision Date: 23 August 1995
• Docket Number: No. 15554,15554
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Victor VILLALOBOS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 732

905 P.2d 732

120 N.M. 694

STATE of New Mexico, Plaintiff-Appellee, v. Victor VILLALOBOS, Defendant-Appellant.

No. 15554.

Court of Appeals of New Mexico.

Aug. 23, 1995.

[120 N.M. 696] Tom Udall, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Sammy J. Quintana, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

WECHSLER, Judge.

Defendant appeals his convictions for attempted trafficking by possession with intent to distribute cocaine and conspiracy to commit attempted trafficking. Defendant raises five issues on appeal: (1) whether there is insufficient evidence to support his convictions when some of the facts pertaining to the crime occurred outside New Mexico; (2) whether his convictions for attempt and conspiracy should merge; (3) whether the trial court erred in refusing his tendered jury instruction to the effect that one cannot conspire with a government agent; (4) whether the trial court erred in various evidentiary rulings; and (5) whether Defendant was charged under the wrong statute. We affirm.

Facts

On June 23, 1992, government informant, Marcelino Ramirez, introduced Defendant to two undercover officers at a lunchtime meeting in a restaurant in El Paso, Texas, that was previously arranged by Ramirez for the sale of cocaine. The officers, posing as husband and wife, and Defendant, his wife, and their three-year-old daughter ate together. Ramirez sat at a separate table. The day before, Defendant had agreed to purchase three kilograms of cocaine for Robert Garza. Garza gave Defendant $50,000 for the cocaine and, apparently, dropped the money off at Defendant's home in Chaparral, New Mexico.

During the meeting in El Paso, Defendant inquired about purchasing three kilograms of cocaine. The undercover officers told him that they could provide the cocaine at a price of $17,000 per kilogram. After negotiations over the price, Defendant agreed to purchase the cocaine for $15,000 per kilogram for a total purchase price of $45,000, with $39,000 up front and the remaining $6000 to be paid after Defendant completed a separate marijuana transaction. At trial, Defendant testified that he intended to purchase the cocaine and transfer it to Garza and that he never intended to pay the remaining $6000.

Before making the final arrangements for the transaction, Defendant wanted to inspect the cocaine and its packaging. The undercover officers arranged a meeting with a third undercover officer at a Kmart parking lot in El Paso. The third officer brought the cocaine. Defendant inspected the package and indicated that it was acceptable. Defendant's wife did not inspect the cocaine with Defendant. Instead, she went into Kmart with one of the undercover officers to look at birthday cards. Defendant and the officers then made plans to meet at Defendant's home later in the afternoon to complete the drug purchase.

When the undercover officers arrived at Defendant's home, Defendant's wife let them in and offered them beer. Defendant asked the officers about the cocaine, and he presented them with a paper bag containing $39,000. Defendant insisted that an undercover officer count the money. The undercover officer did so and instructed his partner to get the cocaine. Defendant's wife went with the partner. At that point, the officers arrested Defendant and his wife.

The only material factual dispute at trial centered around the extent of Defendant's wife's involvement in this drug purchase. Defendant testified that his wife had nothing to do with the drug deal, and he did not know if she was aware of his arrangements for the drug purchase. His wife testified that she was not involved in the drug transaction, but that she had heard them talking about cocaine at the restaurant and at her house. In contrast, one of the undercover officers testified that Defendant's wife was actively involved in the discussion at the restaurant, telling Defendant that he should ask certain questions, that they only had $39,000 for the drug purchase, and that she wanted the transaction to take place at their home.

Discussion

I. Sufficiency of the Evidence

A. Attempted Trafficking

Defendant first argues that a factual impossibility prevents his conviction for attempted trafficking because of the lack of any cocaine present in New Mexico that was offered to Defendant. In other words, Defendant could not have attempted to possess something which was impossible to possess in this state. We disagree.

"[W]hen a defendant does everything that is required to commit a crime but is frustrated due to the fact that [the] completion is impossible," a conviction for attempt is appropriate. State v. Lopez, 100 N.M. 291, 292, 669 P.2d 1086, 1087 (1983). For example, "[t]he fact that [a] pocket [is] empty should not insulate the pickpocket from prosecution for an attempt to steal." Id. at 293, 669 P.2d at 1088 (quoting United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir.1978)). See also State v. Curry, 107 N.M. 133, 753 P.2d 1321 (Ct.App.) (conviction for attempt to possess cocaine upheld even though attempt was bound to fail because police had previously discovered and confiscated cocaine), cert. denied, 107 N.M. 132, 753 P.2d 1320 (1988).

The offense of attempt to commit a felony has two essential elements: (1) an overt act in furtherance of a felony "and tending but failing to effect its commission" and (2) intent to commit the felony. NMSA 1978, § 30-28-1 (Repl.Pamp.1994). Defendant readily admitted his intent to possess the cocaine and distribute it to Garza. His act of handing over the $39,000 to purchase the cocaine was an overt act in furtherance of the crime, and that act occurred in this state. Thus, there is sufficient evidence to support Defendant's conviction for attempted trafficking. It is of no importance that there may have been no cocaine actually present in New Mexico that was available for sale to Defendant.

B. Conspiracy

Defendant argues that because both the restaurant meeting and the subsequent Kmart rendezvous took place in El Paso, the State failed to prove that the crime of conspiracy took place in New Mexico on June 23, 1993.

A conspiracy is complete when the agreement is reached. State v. Jacobs, 102 N.M. 801, 805, 701 P.2d 400, 404 (Ct.App.1985); State v. Leyba, 93 N.M. 366, 367, 600 P.2d 312, 313 (Ct.App.1979). However, numerous cases from other jurisdictions provide that a conspiracy may continue for an extended period of time and across jurisdictional lines. See, e.g., United States v. Palella, 846 F.2d 977, 980 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 162, 102 L.Ed.2d 133 (1988); United States v. Inco Bank & Trust Corp., 845 F.2d 919, 920 (11th Cir.1988); Steffler v. State, 230 Ind. 557, 104 N.E.2d 729, 733-34 (1952). New Mexico law supports the concept of continuing crimes in general, see State v. Stephens, 110 N.M. 525, 527, 797 P.2d 314, 316 (Ct.App.) (New Mexico could convict of larceny a defendant who stole property in Texas and transported the stolen property to New Mexico), cert. denied, 110 N.M. 533, 797 P.2d 983 (1990), and a continuing conspiracy in particular. See State v. Bankert, 117 N.M. 614, 619, 875 P.2d 370, 375 (1994) (conspiracy to obtain cocaine formed in Colorado, continued into New Mexico); State v. Thoreen, 91 N.M. 624, 633, 578 P.2d 325, 334 (Ct.App.) (conspiracy to commit fraud in obtaining loan continues until loan is obtained), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978).

There was testimony that Garza delivered $50,000 to Defendant's home the day before Defendant's arrest for the express purpose of purchasing three kilograms of cocaine. Defendant also admitted that he intended to use that money to purchase the cocaine from the undercover officers for Garza. Defendant does not contend that either Garza or Defendant's wife abandoned any agreement they might have made. Therefore, there was sufficient evidence of a conspiracy between Defendant and Garza, or Defendant and his wife, that continued into New Mexico on June 23, 1993, when Defendant attempted to purchase cocaine.

Defendant's main argument against the existence of a continuing conspiracy is that the State relied on an overt act which act took place in New Mexico for its proof of continuing conspiracy. Defendant maintains that an overt act is not an element of conspiracy. See Jacobs, 102 N.M. at 805, 701 P.2d at 404. Although an overt act may not be an element of conspiracy, it can be circumstantial evidence of a conspiracy and its continuing nature. In this case, Defendant's overt acts at his home are evidence of his conspiracies with Garza and his wife that continued into New Mexico and until June 23.

II. Merger

We turn now to the question of whether Defendant's convictions for attempted trafficking and conspiracy to traffic violate the prohibition against double jeopardy and should, therefore, merge. Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991), provides the framework for analyzing claims that convictions under multiple statutes are the same for double jeopardy purposes. The first part of the Swafford test is "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. at 13, 810 P.2d at 1233. If the conduct is not unitary, the inquiry is complete because there is no double jeopardy violation. Id. However, if the conduct is unitary, as the reviewing court, we must proceed to the second part of the Swafford test to determine whether the legislature intended to permit multiple punishments under different statutes for the same conduct. Id.

We assume, without deciding, that the conduct forming the basis for both convictions was unitary. The second part of the Swafford test then requires this Court to determine whether the legislature intended to permit multiple punishments for attempt and conspiracy. In the absence of an express...