State v. Rael-Gallegos

308 P.3d 1016

STATE of New Mexico, Plaintiff–Appellee,

v.Monica RAEL–GALLEGOS, Defendant–Appellant.

No. 30,349.

Court of Appeals of New Mexico.

June 6, 2013.

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Nancy L. Simmons, The Law Offices of Nancy L. Simmons, P.C., Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant Monica Rael–Gallegos appeals her conviction of trafficking, by possession with intent to distribute cocaine. She argues: (1) there was insufficient evidence to support the jury's verdict, (2) she was denied her right to confront her accuser, (3) the district court erred in admitting testimony of the State's expert witness, and (4) ineffective assistance of counsel. We affirm.

BACKGROUND

{2} In July 2007, Defendant was detained by Officer Jose Sanchez of the Albuquerque Police Department who found her at the intersection of Coors Boulevard and Central Avenue in Albuquerque, New Mexico, “passed out at the wheel” of her vehicle at approximately 4:00 a.m. After several attempts, Officer Sanchez succeeded in waking Defendant and requested that she step out of the vehicle. Defendant complied, and as she stepped out of the vehicle, a small plastic bag containing what the officer believed to be crack cocaine fell out of her purse and onto the ground. Defendant admitted to having “smoked crack [cocaine] about an hour ..., prior to being stopped” by police.

{3} Officer Sanchez arrested Defendant and conducted an inventory search of the vehicle. He did a second inventory search after Defendant informed him that she had money in the console of the vehicle. Among the evidentiary items found in the vehicle during the two inventory searches were sandwich bags, three cell phones, two separate amounts of cash, a crack pipe, and a second bag in the console of the vehicle containing what the officer believed to be crack cocaine. The substance from the bags was later confirmed by laboratory testing to be cocaine with a combined weight of 3.46 grams. Officer Sanchez counted the two amounts of cash that totaled $520.

{4} Based on the amount of crack cocaine, the baggies, the multiple cell phones and the amount of cash in the vehicle, Officer Sanchez's training and experience led him to believe that Defendant was “a trafficker.” Defendant was charged accordingly, with trafficking cocaine, among other crimes. Defendant was brought to trial before a jury in May 2009.

{5} Among the State's witnesses was Sergeant Andrea Taylor, who was qualified as an expert in differentiating personal use versus trafficking amounts of crack cocaine. During trial, Sergeant Taylor examined the crack cocaine that Defendant was alleged to have possessed at the time of her arrest and she testified that she counted approximately nineteen “rocks.” She provided the caveat, however, that because the evidence had been collected in 2007, some pieces may have “chipped off” and thus, it was not fair to say how many rocks comprised the evidence in 2007. In addition to this and other testimony, Sergeant Taylor also testified as to some things that a crack cocaine “dealer” might have in his or her possession. These items included ledgers, crack packaged for sale, multiple cell phones, paraphernalia (either straws or needles to ingest powder cocaine, or pipes to smoke crack cocaine), weapons, large amounts of money, scales, baggies, or a “bunch of bags with the ends cut off.” Sergeant Taylor stated, however, that someone who possesses drugs and the drug-related items that she described was not necessarily a drug trafficker. Further background regarding Sergeant Taylor's testimony and other aspects of the trial will be provided as relevant throughout this Opinion.

{6} The jury found Defendant guilty of trafficking, among other crimes. She appeals from the trafficking conviction. Defendant argues that there was insufficient evidence to prove that the cocaine found in the console of the vehicle was hers, and therefore, that there was insufficient evidence to support the trafficking conviction. She also argues that her confrontation right was violated by Officer Sanchez's testimony regarding the amount of money that was found in her vehicle. Further, she argues that Sergeant Taylor should not have been qualified as an expert, that her testimony exceeded the bounds of permissible expert testimony, and that it was more prejudicial than probative. Finally, she argues that she did not receive effective assistance of counsel.

DISCUSSIONI. Sufficiency of the Evidence

{7} Defendant challenges the sufficiency of the evidence to support the jury's verdict as to the trafficking charge. Defendant concedes that there was substantial evidence to prove “that she possessed some cocaine,” that is, the cocaine that fell to the ground when Defendant got out of the vehicle. Defendant claims, however, that the State failed to present sufficient evidence that she possessed the additional cocaine that was found in the center console. Further, based on her claim that the cocaine found in the center console was not in her possession, Defendant argues that there was insufficient evidence to prove that she “intended to transfer the cocaine to another.”

{8} “In reviewing the sufficiency of the evidence in a criminal case, we must determine whether substantial evidence, either direct or circumstantial, exists to support a verdict of guilty beyond a reasonable doubt for every essential element of the crime at issue.” State v. Armijo, 2005–NMCA–010, ¶ 4, 136 N.M. 723, 104 P.3d 1114. “Resolving all conflicts, indulging all permissible inferences to uphold the conviction, and disregarding all evidence and inferences to the contrary, [we view the] evidence in the light most favorable to the verdict to ensure that a rational jury could have found each element of the crime established beyond a reasonable doubt.” Id. “[I]t is for the fact-finder to evaluate the weight of the evidence, to assess the credibility of the various witnesses, and to resolve any conflicts in the evidence; we will not substitute our judgment as to such matters.” Id. We will not re-weigh the evidence. State v. Garcia, 2011–NMSC–003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.

{9} The jury was instructed that, to find Defendant guilty of trafficking, the State was required to prove that Defendant had cocaine in her possession, knew or believed it to be cocaine, and intended to transfer it to another. Defendant's sufficiency of the evidence attack is limited to the cocaine that was found in the center console. The cocaine that dropped to the ground is not at issue. Defendant argues that there was insufficient evidence to prove that the cocaine in the center console was hers. Then, building on that premise, she argues there was insufficient evidence to support a trafficking charge.

A. The Cocaine in the Center Console

{10} Defendant argues that because she directed police toward the center console, by telling Officer Sanchez that she had money stored there, “it defies reason” to infer that Defendant owned the cocaine that was also in the center console because, had Defendant known that the cocaine was in the console, she would not have “point[ed] Officer Sanchez to search” there. Additionally, in an apparent attempt to preemptively rebuff the State's argument that Defendant admitted to Officer Sanchez that the cocaine in the center console was hers, Defendant attacks Officer Sanchez's testimony for being “impossibly vague” and therefore “meaningless.” Further, Defendant argues that “in the absence of any admission” of ownership of the cocaine in the center console, and absent evidence “that she was in exclusive possession of the vehicle,” any theory of constructive possession lacks viability.

{11} Viewing the evidence in the light most favorable to the jury's verdict, we conclude that there existed substantial evidence from which the jury could conclude that Defendant possessed the cocaine found in the center console. Officer Sanchez testified that Defendant told him, “[t]hat there was money inside the vehicle, and it was in the center console.” Accordingly, he went back to the vehicle and removed a bag that he found in the console. Inside that bag he found $392 along with “a small bag with the off-white substance ..., consistent with crack cocaine.” In response to the State's question, “did ... [D]efendant mention anything about whose crack that was [,]” Officer Sanchez testified that Defendant “stated it was hers.” Viewed in the context of the prosecutor's questions which were, during the foregoing aspect of the State's examination of Officer Sanchez, limited to the subject of the cocaine found in the console, the jury could reasonably infer that Defendant admitted to Officer Sanchez that the cocaine in the console was hers. Moreover, Defendant was the registered owner and the sole occupant of the vehicle from which the cocaine was retrieved. The cocaine was found in the center console of the vehicle inside of a bag that also contained money, to which Defendant had directed Officer Sanchez. From these facts, the jury could reasonably infer that Defendant possessed the cocaine.

{12} We see no reasonable basis for Defendant to discuss constructive possession. The jury was not instructed as to constructive possession, nor, during trial, did the State rely on a theory of constructive possession to prove its case. Defendant's reliance on State v. Becerra, 112 N.M. 604, 817 P.2d 1246 (Ct.App.1991), and State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974), for the analyses in those cases of constructive possession is misplaced. Those cases are inapplicable under the facts of this case.

{13} As to Defendant's argument that “it defies reason” to assume that she would alert Officer Sanchez to the money if she knew that he would inevitably find the cocaine, we do not find this argument persuasive. While this line of reasoning could suggest that Defenda...