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State v. Benally

Court of Appeals of New Mexico

March 6, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
MILO BENALLY, Defendant-Appellant.


          Hector H. Balderas, Attorney General Santa Fe, NM Walter M. Hart III, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant



         {¶1} Defendant appeals from his convictions for two counts of possession of a deadly weapon by a prisoner in violation of NMSA 1978, Section 30-22-16 (1986), for which he was sentenced to consecutive nine-year terms, or a total of eighteen years' incarceration.[1] He contends that neither conviction was supported by substantial evidence and that the separate convictions violate his right to be free from double jeopardy. We reject Defendant's challenge to the legal sufficiency of the evidence, but agree that the two convictions violate the prohibition against double jeopardy.


         {¶2} Prison staff received information from an inmate that prompted a "shakedown" of the particular area of the prison where Defendant was housed. This entailed the systematic removal of inmates and an ensuing search for contraband, including the bunk and shower areas of the "pod" that was the subject of concern. The area searched by prison staff was an open, dormitory-style space with approximately six to eight recessed bunk units, each containing about six bunks.

         {¶3} Defendant slept on the bottom mattress of a three-stack bunk, with the middle bunk being vacant. In Defendant's bunk area were pieces of legal paperwork, mail, and other items that bore only Defendant's name. On an "L" shaped support bar of the vacant, middle bunk at the top of Defendant's bunk area, prison staff found a shaving razor with a playing card folded around it to form a handle (razor weapon). Upon discovering the razor weapon, prison staff removed the mattress from Defendant's bunk and noticed a four- to five-inch slit in its side. They cut open the mattress and found a sharpened piece of the end of a plastic mop handle (mop weapon) concealed within. Approximately eighty feet away in the shower area of the pod, prison staff next found orange plastic shavings that matched the end of a mop handle found in a shower stall and similar residue ground into the concrete lip of the shower pan. After checking a utility closet that contained items used by inmates to clean their cells, prison staff also determined that an end to one of the plastic mop handles had been removed.

         {¶4} Upon discovery of the two makeshift weapons, Deputy Jason Sherman spoke with Defendant but did not inform him of any specifics associated with the discovery of the weapons. Deputy Sherman told Defendant only that he wanted to "speak with him about the incident at the jail today." During the conversation, Defendant expressed feelings of "hate and anger" toward a particular inmate and stated that he wanted to "cut that guy's head off." Obliquely referring to what was found during the prison search, though not identifying any specific item or object by name, Defendant also stated, "Check this out, Sherman. What if that thing is mine?" Defendant went on to say that (1) the prison staff should be glad they found what they were looking for; (2) had he been asked, he simply would have told the prison staff to "pull all the mattresses and that would have been the end of it"; and (3) some things "could have gone down, but that God was looking out" and pulled Defendant through the situation before he "lost it" and "something .. . [went] down." Despite these statements, when asked to admit the weapons were his, Defendant declared, "I don't believe in statements because I could lie and say it ain't mine and be lying out my ass and still get charged. Or I could say, 'Yes, it's mine,' and still get charged with it."

         {¶5} Defendant was charged with two counts of possession of a deadly weapon or explosive by a prisoner, contrary to Section 30-22-16. At trial, Defendant testified that the razor and mop weapons were not his and he did not know what Deputy Sherman was referring to during their conversation following the discovery of the weapons. The jury returned guilty verdicts on both counts.


         I. Sufficiency of the Evidence

         {¶6} Defendant argues that his convictions are not supported by substantial evidence. Specifically, he contends that because "[t]he weapons in this case were accessible to anyone in the pod[, ] every inmate in the pod could have exercised control over them[, ]" thus precluding a finding that Defendant, and not any other inmate, possessed the weapons.

         {¶7} "To determine whether the evidence presented was sufficient to sustain the verdict, we must decide whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Brietag, 1989- NMCA-019, ¶9, 108 N.M. 368, 772 P.2d 898. Substantial evidence consists of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See State v. Salgado,1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661. We view the evidence in the light most favorable to the verdict, "indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham,2000-NMSC-009, 126, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a different result. See State v. Rojo,1999-NMSC-001, 119, ¶ 26 ...

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