State v. Wilson, 28

Docket Nº138.
Citation228 P.3d 490
Case DateOctober 20, 2009
CourtCourt of Appeals of New Mexico

228 P.3d 490
2010-NMCA-018

2010-NMCA-018

STATE of New Mexico, Plaintiff-Appellee,
v.
Terry WILSON, Defendant-Appellant.

No. 28,138.

Court of Appeals of New Mexico.

October 20, 2009.

Certiorari Denied, December 23, 2009, No. 32,074.


228 P.3d 491

COPYRIGHT MATERIAL OMITTED

228 P.3d 492

Gary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant appeals his convictions for trafficking a controlled substance (cocaine) and conspiracy to traffic cocaine within a drug-free school zone. We address whether there was sufficient evidence to support his conspiracy conviction and whether he was denied his right to a speedy trial. To resolve this appeal, we address a question we declined to reach in State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102, which is whether the term "knowingly" in NMSA 1978, § 30-31-20(C) (1990) (amended 2006), requires the State to prove knowledge of the drug-free school zone as an essential element of distributing drugs in a drug-free school zone. We conclude that knowledge is an essential element and that the evidence was insufficient to support Defendant's conspiracy conviction. Accordingly, we remand for entry of judgment and resentencing on the lesser offense of conspiracy to traffic cocaine. We reject Defendant's speedy trial claim and affirm his conviction for trafficking a controlled substance.

BACKGROUND

{2} On March 9, 2006, at 5:40 p.m., Albuquerque Police Department Detectives Sallee and Riley were patrolling the area near Zuni Road and Louisiana Boulevard seeking to make undercover street-level drug buys. They saw Defendant walking southbound down Indiana Street, made eye contact with him, and pulled into the parking lot of an apartment complex at 429 Indiana Street. Defendant asked them what they wanted, and Detective Sallee asked "Can you get a stone? Or a forty even better." Defendant said he was on his way to "pick up down the street." While the detectives waited, Defendant walked southbound until he met up with another individual, Mr. Hightower, just north of the intersection of Indiana Street and Bell Avenue. After a conversation, Defendant and Mr. Hightower returned to the detectives' car.

{3} Mr. Hightower and Defendant approached the passenger side of the car and Mr. Hightower negotiated a drug deal with

228 P.3d 493
the detectives. He said he had thirty dollars worth of cocaine, but would sell it to them for twenty if they would let him "pinch a little bit." Detective Sallee explained during his testimony that "pinching" means "we'd let him take a little piece off and smoke it together or take a piece off so he could smoke it." The detectives agreed, and Detective Riley gave Mr. Hightower and Defendant each a twenty dollar bill. Detective Sallee told Detective Riley he had given them too much money, whereupon Defendant gave his twenty back. Mr. Hightower gave the cocaine to Detective Riley, and Defendant and Mr. Hightower got into the back seat. The detectives gave the arrest signal, and the arrest team arrived and arrested Defendant and Mr. Hightower

{4} At the time, neither detective realized or knew that the transaction might have occurred in a drug-free school zone. Defendant was originally charged with trafficking cocaine and conspiracy to traffic cocaine. It was only later that the investigator at the District Attorney's Office, utilizing a computer program designed to determine whether a location falls within one thousand feet of a school, typed in 429 Indiana Street and realized that the transaction had occurred within a drug-free school zone. The investigator later conducted measurements establishing that the drug transaction occurred 893 feet from Emerson Elementary School, which was located at the end of the street. When Defendant was indicted, he was charged with trafficking cocaine while within a drug-free school zone and conspiracy to traffic while within a drug-free school zone.

{5} The jury did not convict Defendant of trafficking cocaine within a drug-free school zone. Instead, the jury selected the lesser, generic offense of trafficking cocaine. It did, however, convict him of conspiracy to traffic cocaine while within a drug-free school zone.

DISCUSSION

I. Sufficiency of Evidence

A. Trafficking In a Drug-Free School Zone

{6} Defendant argues that the evidence was insufficient to support his conviction for conspiracy to traffic drugs within a drug-free school zone because the evidence did not establish that he was aware of or intended to traffic within a drug-free school zone. Before reviewing the evidence in this case, we examine the statutory framework to determine the elements that the State must prove. Trafficking a controlled substance consists of intentionally trafficking. See § 30-31-20(B). In addition to trafficking a controlled substance, the Legislature also created an additional offense for trafficking drugs while within a drug-free school zone. See § 30-31-20(C). Section 30-31-20(C) states: "A person who knowingly violates Subsection (B) of this section within a drug-free school zone excluding private property residentially zoned or used primarily as a residence is guilty of a first degree felony." A drug-free school zone was defined in the applicable 2005 version as "a public school or property that is used for public school purposes and the area within one thousand feet of the school property line, but it does not mean any post-secondary school." NMSA 1978, § 30-31-2(Y) (2005) (amended 2006, 2008, and 2009); 2005 N.M. Laws, ch. 152, § 9.

{7} We next examine whether the State must prove knowledge when it seeks a conviction for selling drugs within a drug-free school zone. In Montes, 2007-NMCA-083, ¶ 34, 142 N.M. 221, 164 P.3d 102, this Court stated, "If the defendant intended to argue that knowledge or intent of the location of transfer is an essential element of principal liability for this enhanced crime and that the jury should have been instructed accordingly, he has not clearly made that argument on appeal, and he did not make that argument below." We recognized that the statute contained the word "knowingly," but did not reach the meaning of that term. Id. Consequently, we left "for another day the question whether the crime of distribution in a drug-free school zone requires a mental state regarding the location of distribution." Id. To support the defendant's conspiracy conviction, we reviewed the evidence to determine whether there was evidence that the defendant intended that the transfer occur in a drug-free school zone and found there was sufficient evidence. Id. ¶ 38.

228 P.3d 494

{8} In this case, however, the argument concerning knowledge was preserved. Defendant asked the court to dismiss the drug-free school zone conspiracy count, arguing that the statutory definition required that a person must knowingly conspire to act within a drug-free school zone. Defendant argued that there was no evidence that he knowingly conspired to traffic within the drug-free school zone and also argued that he had no intent to commit trafficking within a drug-free school zone. In response, the State relied on Montes to argue that neither knowledge of the drug-free school zone, nor intent to traffic in the zone, were required. Defendant argued that the issue was not preserved in Montes, but that he was "raising that issue now." The court rejected Defendant's argument, stating that "there isn't an intent requirement included in Subsection (C) that he or the offender knowingly or intentionally trafficked in a drug-free school zone." The court expressed that the intent requirement in Subsection B was only in reference to a person who intentionally traffics.

{9} Because the issue of knowledge is squarely presented here, we now consider the issue we declined to reach in Montes. The issue concerns statutory construction so our review is de novo. State v. McClendon, 2001-NMSC-023, ¶ 2, 130 N.M. 551, 28 P.3d 1092. We begin with the language of the statute to determine legislative intent. See State v. Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533 (filed 2004). "If the language of the statute is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation." State v. McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215. The statute must be read as a whole, construing each section so as to produce a harmonious whole. See Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533.

{10} In evaluating the element of knowing conduct, the existence of Defendant's requisite knowledge is an issue of fact. As with other questions concerning the sufficiency of evidence, we view evidence of Defendant's knowledge in the light most favorable to the verdict. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Then we determine "whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt." State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

{11} Trafficking a controlled substance, as defined in Subsection (B), only requires that the act be intentional. Section 30-31-20(B) (stating that "it is unlawful to intentionally traffic"). "Intentional" refers to general criminal intent, the requirement that a defendant generally intend to commit the act. See UJI 14-141 NMRA (stating that "a person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful" (alteration omitted)). Under Subsection (B), commission of the first offense is a second degree felony; subsequent offenses are punished as a first...

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