State v. Viveros

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39829
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ROMAN VIVEROS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Matthew E. Chandler, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Patrick J. Martinez, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Defendant appeals his convictions for possession with intent to distribute
methamphetamine and heroin. [MIO 2] In our notice of proposed disposition, we
proposed to affirm Defendant’s convictions. [CN 1, 6] Defendant filed a memorandum in
opposition that we have duly considered. Remaining unpersuaded, we affirm.
{2} In his memorandum in opposition, Defendant maintains that the evidence was
insufficient to sustain his convictions. [MIO 2-3] To the extent that Defendant now
argues that our decision in State v. Becerra, 1991-NMCA-090, ¶ 1, 112 N.M. 604, 817
P.2d 1246, requires reversal, we disagree. Defendant contends that the evidence he
possessed the methamphetamine and heroin found in his trunk was insufficient as
Becerra requires additional evidence of knowledge and control when a defendant does
not have exclusive possession of the premises where the drugs were found. [MIO 7]
Supporting this contention, Defendant points to testimony at trial indicating he had just
purchased the vehicle where the drugs were found earlier that day, demonstrating that
he did not have exclusive possession or control over the vehicle on the day of the
incident. [MIO 7] See id. ¶ 14 (“[K]nowledge of the presence of drugs may be inferred
where exclusive possession of the premises is shown[.]”); see also State v. Howl, 2016-
NMCA-084, ¶ 31, 381 P.3d 684 (explaining that “[w]hen exclusive control is at issue,
additional circumstances, including the conduct of the accused, are required” to
establish constructive possession). Even if we were to conclude, however, that
Defendant did not have exclusive control over the vehicle, other evidence at trial
indicating that he owned the vehicle, was its sole occupant at the time of the stop, and
had marijuana on his person and in his cup-holder is sufficient to allow a jury to
conclude that Defendant constructively possessed the methamphetamine and heroin in
his trunk. See Howl, 2016-NMCA-084, ¶ 31 (concluding that evidence establishing (1)
the defendant was the owner of the vehicle, and (2) had drugs on his person was
sufficient to support the jury’s determination that the defendant possessed drug
paraphernalia found elsewhere in the vehicle).
{3} Defendant also relies on Becerra to contend that the quantity of the drugs
recovered was insufficient to support an inference that he intended to distribute
methamphetamine or heroin. [MIO 8] See Becerra, 1991-NMCA-090, ¶ 22 (concluding
that the evidence that the defendant possessed approximately fifty-six grams of cocaine
by itself was insufficient to establish that the defendant had the intent to distribute that
cocaine). In this case, however, there was ample evidence apart from the amounts of
methamphetamine and heroin to support an inference of Defendant’s intent to distribute,
including the drugs’ proximity to baggies, syringes, a scale, a scoop and a firearm,
which were all found together in Defendant’s trunk. [DS 3] Thus, Defendant’s reliance
on Becerra on this point is unpersuasive.
{4} Defendant has not asserted any new facts, law, or argument that persuade this
Court that our notice of proposed disposition was erroneous. See Hennessy v. Duryea,
1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held
that, in summary calendar cases, the burden is on the party opposing the proposed
disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-
027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a] party responding to a
summary calendar notice must come forward and specifically point out errors of law and
fact[,]” and the repetition of earlier arguments does not fulfill this requirement),
superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶
3, 297 P.3d 374. We therefore refer Defendant to our analysis therein.
{5} For the reasons stated in our notice of proposed disposition and herein, we affirm
Defendant’s convictions.
{6} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
JANE B. YOHALEM, Judge