State of New Mexico v. Patricio D. Ortegon

Albuquerque, NM - Criminal defense attorney represented STEVEN BLACK with appealing his convictions of possession of a controlled substance and tampering with evidence

Defendant appeals his convictions of possession of a controlled substance and

19 tampering with evidence, challenging the sufficiency of the evidence to support

20 those convictions, along with the district court's denial of a directed verdict. [DS 5]

21 In his docketing statement, Defendant recited that he moved for a directed verdict as

22 to both counts, arguing that, "since the State had not weighed or otherwise quantified

1 the amount of methamphetamine Defendant . . . has possessed, then he could not

2 have 'knowingly' possessed the narcotic, and therefore he was entitled to an

3 acquittal as a matter of law.” [DS 4] Defendant's docketing statement identified no

4 other basis for this Court to determine that the trial evidence was insufficient. This

5 Court issued a notice of proposed summary disposition proposing to affirm.

6 Defendant has filed a memorandum in opposition to that proposed disposition.

7 Having duly considered that memorandum, we remain unpersuaded and affirm.

8 {2} Defendant's memorandum continues to assert that the State's evidence in this

9 case was insufficient to establish Defendant's knowledge that a syringe contained

10 methamphetamine. [MIO 6] For the reasons stated in our notice proposing

11 affirmance, we remain unpersuaded. See State v. Mondragon, 1988-NMCA-027,

12 ¶ 10, 107 N.M. 421, 759 P.2d 1003 (noting that repetition of earlier arguments does

13 not satisfy a party's appellate burden).

14 {3} Defendant's memorandum in opposition now also asserts that the State's

15 evidence was insufficient to establish that the syringe, which was retrieved from a

16 rooftop, was the same object that Defendant threw onto that rooftop while being

17 arrested. [MIO 5-6] These events appear to have been recorded by a lapel camera,

18 and the footage from that camera was introduced at trial. [DS 3-4] In his

19 memorandum, Defendant suggests the possibility that the "plastic object” thrown by

20 Defendant was not the syringe subsequently found by a police officer. [MIO 5] This 3

1 Court, however, does not "substitute its judgment for that of the fact[-]finder.” State

2 v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. As a result, when

3 the evidence supports more than one reasonable finding, "one consistent with guilt

4 and another consistent with innocence, our answer is that by its verdict, the jury has

5 necessarily found the hypothesis of guilt more reasonable than the hypothesis of

6 innocence.” State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393.

7 {4} Defendant's memorandum also challenges the sufficiency of the evidence to

8 establish his intent to tamper with evidence. [MIO 7] Before addressing that

9 question, we note that Defendant suggests that this Court's notice of proposed

10 summary disposition did not address this issue. [Id.] That notice, however, addressed

11 both of Defendant's convictions [CN 1], proposing to affirm the entire judgment

12 entered below [CN 4]. It is true that we did so only in the context of the challenge

13 actually asserted in the docketing statement, which involved the question of whether

14 he was aware that there was methamphetamine in the syringe. [See DS 4 (discussing

15 knowledge of possession), 5-6 (citing cases involving trace amounts of cocaine)]

16 Defendant's docketing statement did not raise the separate question of whether he

17 intentionally hampered a police investigation by throwing the syringe onto a rooftop.

18 {5} Turning to that question now, however, we note that Defendant does not

19 suggest any alternate intent or purpose that could explain his actions. As we pointed

20 out in our notice, the issue of:4

1 A defendant's knowledge or intent generally presents a question of fact

2 for a jury to decide.” State v. Wasson, 1998-NMCA-087, ¶ 12, 125

3 N.M. 656, 964 P.2d 820. Further, because knowledge, like intent, "can

4 rarely be proved directly [it] often is proved by circumstantial

5 evidence.” State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7

6 P.3d 495. In this case, it seems that a jury could draw a reasonable

7 inference that Defendant was aware of the contents of the syringe from

8 the fact that he threw it onto a roof while being taken into custody. See

9 State v. Lujan, 1985-NMCA-111, ¶ 36, 103 N.M. 667, 712 P.2d 13

10 (noting that a defendant's actions, such as flight or attempts to deceive

11 police, tend to show consciousness of guilt).

12 [CN 3-4] A jury would be equally justified in drawing from these facts a reasonable

13 inference that Defendant was hoping that the syringe would not be recovered and

14 that he did so with the specific intent to evade prosecution. [See MIO 9 (quoting the

15 relevant jury instruction, to the effect that the relevant intent was an intent to prevent

16 his "apprehension, prosecution or conviction”)] Thus, the circumstances established

17 at trial provided a reasonable basis for the jury to find that Defendant threw the

18 syringe onto the roof and did so in the hope of evading prosecution.

Accordingly, for the reasons stated here and in our notice of proposed summary disposition, we affirm the judgment of the district court.