* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Michael Burrage, Chief Judge, United Stat es District Court for the Eastern District of Oklahoma, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 21 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
SAM SMITH,

Petitioner-Appellant,

v. YMELDA VALDEZ, ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 96-2232 (D.C. No. CIV 94-1295 JC/LFG)

(D. N.M.)

ORDER AND JUDGMENT * Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. ** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner Sam Smith appeals the district court’s o rder denying his petition for a writ of habeas corpus filed pursuant to 28 U. S.C. § 2254. Petitioner was convicted by a state court jury of the crime of pos session of cocaine, in violation of the version of N.M. Stat. Ann. § 30-31-23 then i n effect. He claims that he was denied his constitutional right to due process because there was insufficient evidence to sustain his conviction. He has appliedfor a certificate of appealability, as required by 28 U.S.C. § 2253(c). We deny the certificate and dismiss the appeal. A claim based on sufficiency of the evidence is a m ixed question of fact and law to be reviewed de novo on federal habeas. See Maes v. Thomas , 46 F.3d 979, 988 (10th Cir. 1995). Habeas relief will be g ranted only if a rational trierof-fact could not have found that each element of t he crime was proved beyond a reasonable doubt, considering all of the evidence i n the light most favorable to the prosecution. See id. (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). We do not reweigh conflicting evidence or make cred ibility determinations. See Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996). We must “ac cept the jury’s resolution of the evidence as long as it is within the bounds of reason.” Grubbs v. Hannigan , 982 F.2d 1483, 1487 (10th Cir. 1993). Here, the facts are not disputed. At the time he w as searched during an unrelated matter, petitioner was carrying a coin-si zed plastic bag containing a-3-

very small amount of cocaine. The baggie did not c ontain an administrable amount of cocaine, but it was clearly visible in th e baggie and petitioner testified that he saw it. According to petitioner, he had pi cked up the baggie from a parking lot, intending to use it to store his spare watch pins. No watch pins were found in the baggie. Petitioner also testified that he had used cocaine in the past, he previously had been convicted of cocaine possess ion, and he no longer used cocaine. The parties agree that the prosecution was requiredto establish that petitioner was in possession of cocaine and he knewor believed the substance was cocaine or other contraband. Petitioner does n ot dispute that the amount of cocaine in the baggie was enough to support his con viction for possession. See State v. Wood , 875 P.2d 1113, 1116-17 (N.M. Ct. App. 1994) (“anyclearly identifiable amount of a controlled substance is su fficient evidence to support a conviction for possession of a controlled substance ;” usable or measurable amount not required). Rather, he argues that a tra ce amount of cocaine cannot be sufficient to establish his knowledge that the substance was cocaine, absent corroborating evidence. He maintains that his prio r cocaine possession conviction cannot contribute to a finding of knowledge because it was evidence only of his propensity to use cocaine. He maintains that the j ury impermissibly convicted him based on evidence that he had a propensity to u se cocaine.-4-

Knowledge can be established by direct or circumstantial evidence. Cf. Minner v. Kerby , 30 F.3d 1311, 1315 (10th Cir. 1994) (intent to di stribute); see also Wood , 875 P.2d at 1117. Although New Mexico state law generally prohibits the introduction of evidence of a defenda nt’s prior bad acts to show his propensity to commit a crime, the evidence may be a dmissible for another purpose, such as showing knowledge or absence of mi stake. See State v. Woodward , 908 P.d. 231, 237 (N.M. 1995). Therefore, becaus e the evidence of his prior conviction related to the element of peti tioner’s knowledge “in a way that [did] not merely show his propensity” to posse ss cocaine, State v. Niewiadowski , 901 P.2d 779, 782-83 (N.M. Ct. App.), cert. denie d , 899 P.2d 1138 (N.M. 1995), the prior conviction properly was considered by the jury as evidence of knowledge or absence of mistake. We ho ld that a rational trier of fact could find each element of the cocaine possess ion charge proved beyond a reasonable doubt. Accordingly, petitioner’s applic ation for a certificate of appealability is denied because he has failed to ma ke a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). APPEAL DISMISSED. Entered for the Court Michael Burrage Chief District Judge