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State v. Tidey

Court of Appeals of New Mexico

October 17, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
KENNETH TIDEY, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY Daniel Viramontes, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Tonya Noonan Herring, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          TIMOTHY L. GARCIA, JUDGE.

         {1} Following a traffic stop that also resulted in an arrest and search, Defendant Kenneth Tidey was convicted of one count of possession of methamphetamine with intent to distribute, two counts of possession of drug paraphernalia, and one count of driving with a suspended or revoked license. Defendant raised two different challenges based upon double jeopardy grounds. First, Defendant challenges his two separate convictions of possession of drug paraphernalia. One conviction was based upon his possession of over ninety small plastic baggies and the second conviction was based upon his possession of a red straw with a burnt end. As a matter of first impression, we agree with Defendant that based upon the definition of containers used as drug paraphernalia statutes and the insufficient indicia of distinctness regarding the containers in his possession, the evidence does not support these two separate convictions for possession of drug paraphernalia. We vacate Defendant's conviction for possession of drug paraphernalia that was based upon the numerous small plastic baggies and affirm his conviction for possession of drug paraphernalia that was based upon the red straw with a burnt end. As a result, we determine that it is unnecessary to address Defendant's second double jeopardy argument. This second argument challenges whether his drug paraphernalia conviction for possession of the numerous small plastic baggies and his separate conviction for possession of methamphetamine that was contained in a small plastic baggie violate double jeopardy. Defendant's remaining arguments are unpersuasive and we affirm his remaining convictions.

         BACKGROUND

         {2} On March 17, 2012, Lieutenant Conrad Jacquez, with the Deming, New Mexico Police Department, stopped Defendant's vehicle in response to a tip advising that a driver of a gray Ford Crown Victoria was driving erratically, indicating a possible drunk or reckless driver. Lieutenant Jacquez requested Defendant's driver's license, registration, and insurance. Defendant handed Lieutenant Jacquez his New Mexico identification card. After running his identification, Lieutenant Jacquez determined that Defendant's license had been revoked. Lieutenant Jacquez asked Defendant to step out of the vehicle, he advised Defendant of the reason for his arrest, and placed him under arrest for driving on a revoked license. Defendant did not exhibit any signs of intoxication.

         {3} Prior to placing Defendant in the back of the police car, Lieutenant Jacquez asked Defendant if he had anything on his person that could hurt him. Defendant responded that he had a knife in one of his pockets. In searching for the knife, Lieutenant Jacquez pulled from Defendant's left front pocket a large clear bag containing ninety-seven empty smaller clear bags with red lips painted on them, as well as an empty red straw with one burnt end. Not finding the knife, Lieutenant Jacquez then searched Defendant's right front pocket and found a similar small plastic bag containing a white powdery substance and the knife. Lieutenant Jacquez testified at trial that the small bags, one inch by one inch with a zip-lock top (the baggies), are commonly used to package methamphetamine. He also testified that straws with burnt ends are another way to package methamphetamine or other narcotics and are never used for smoking. Lieutenant Jacquez did not find any instruments on Defendant for ingesting methamphetamine, such as needles or pipes.

         {4} Upon placing Defendant in the back of the police vehicle, Lieutenant Jacquez asked if he could search Defendant's vehicle. Around this time, the owner of the vehicle arrived, and she gave Lieutenant Jacquez consent to search the vehicle. Lieutenant Jacquez and a second officer searched the vehicle and found a pack of cigarettes under the armrest in the front seat. Inside the cellophane wrapper of the pack, the officers found three small baggies of the same type found in Defendant's pocket also containing a similar white powdery substance. At trial, a forensic crime expert testified that the four small baggies were tested and contained methamphetamine, but only three contained a "weighable amount."

         {5} The State filed a criminal information on May 1, 2012, charging Defendant with the following four counts: (1) trafficking in a controlled substance (by possession with intent to distribute), pursuant to NMSA 1978, Section 30-31-20(A)(3) (2006); (2) possession of drug paraphernalia, "straws", pursuant to NMSA 1978, Section 30-31-25.1(A) (2001); (3) possession of drug paraphernalia, "plastic baggies, " pursuant to Section 30-31-25.1(A); and (4) driving with a suspended or revoked license, pursuant to NMSA 1978, Section 66-5-39 (1993, amended 2013). Following a jury trial, the jury found Defendant guilty of the lesser included offense of possession of a controlled substance (Count 1), both counts of possession of drug paraphernalia (Counts 2 and 3), and driving without a license (Count 4). Defendant now appeals.

         DISCUSSION

         {6} Defendant makes the following arguments on appeal: (1) Defendant's drug-related convictions violate double jeopardy, (2) the district court erred in denying Defendant's motion to suppress evidence for a lack of reasonable suspicion, (3) the evidence presented at trial was insufficient to support Defendant's convictions, and (4) Defendant's right to a speedy trial was violated.

         I. Double Jeopardy

         {7} Defendant makes two related double jeopardy arguments. First, he argues that his two convictions for possession of drug paraphernalia violate double jeopardy as the acts were not sufficiently distinct to warrant two separate charges. Second, he argues that his convictions for possession of methamphetamine and possession of drug paraphernalia violate double jeopardy because the jury instructions failed to distinguish between the empty ...


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