This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,145 9 EDGAR RUEDA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas Driggers, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Allison H. Jaramillo, Assist ant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 KENNEDY, Judge. 22 Defendant Edgar Rueda (Defendant) appeals from the judgment and order 232 partially suspending sentence, convicting hi m of possession of drug paraphernalia and 1 bringing contraband onto prison grounds. [RP 62] Defendant raises one issue on 2 appeal: whether the district court committed reversible error by denying Defendant’s 3 motion to dismiss as a matter of law. [DS 2] This Court’s calendar notice proposed 4 summary affirmance. [Ct. App. File, CN1] Defendant has filed a memorandum in 5 opposition. [Ct. App. File, MIO] Unpersuaded, we affirm. 6 DISCUSSION 7 The issue of whether the district court correctly interpreted NMSA 1978, 8 Section 30-22-14(B) (1976), presents a ques tion of law that we review de novo. State 9 v. Cole , 2007-NMCA-099, ¶ 7, 142 N.M. 325, 164 P.3d 1024 (citing State v. Rowell , 10 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (stating that questions of statutory 11 construction are reviewed de novo)). “Secti on 30-22-14(B) provides, in relevant part, 12 that ‘[b]ringing contraband intoa jail consists of carrying contraband into the confines 13 of a county or municipal jail.’” Id. (alteration in original). “Marijuana is contraband 14 within the meaning of the statute.” Id. SeeSection 30-22-14(C)(4) (defining 15 contraband as “any c ontrolled substance, as define d in the Controlled Substances 16 Act”). 17 The facts of this case are undisputed. Defendant was outside the prison, but in 18 the custody of the prison, on a work detail. [DS 2] Upon reentering the prison, 193 Defendant was searched and marijuana and a foil marijuana pipe were located on his 1 person. [RP 12] Defendant claimed that he found the marijuana while on work detail 2 outside the facility and decided to keep it. [Id.] Defendant also stated that he found 3 the foil pipe in a different location on th e same work detail. [Id.] Defendant 4 concealed the contraband in his shoe in order to smuggle it into the prison. [Id.] After 5 the contraband was found a chemical test confirmed it was marijuana. [Id.] 6 In his motion to dismiss as a matter of law, Defendant pointed out that he did 7 not reenter the prison voluntarily. [RP 29-31] Defendant argues that Coleholds that 8 in order to commit bringing c ontraband into a jail, the accu sed had to be entering the 9 jail voluntarily. [RP 30] Since “at no time did [Defendant] enter the prison 10 voluntarily[,]” Count 1 of the indictment charging Defendant with bringing 11 contraband onto the prison grounds must be di smissed as a matter of law. [RP 30, 31] 12 In his memorandum, Defendant does not dispute the facts we relied upon in the 13 calendar notice. [MIO 1] De fendant continues to argue, however, that the facts in this 14 case are similar to those in Coleand therefore, his convic tion for bringing contraband 15 into the jail must be reversed. Defendant contends that, like the defendant in Cole , he 16 made a choice to possess marijuana and like the defendant in Cole he did not enter the 17 jail voluntarily. [MIO 4] Defendant points out that the defendant in Coleknew that 18 by failing to disclose the contraband when presented with the questionnaire that he 194 would be entering the prison w ith contraband. [MIO 5] Similarly, Defendant argues, 1 he knew he would be entering the prison with marijuana. [Id.] Defendant’s argument 2 misses the point; we are not persuaded. See State v. Acosta , No. 29,139, slip op. 3 (N.M. Ct. App. June 10, 2009) (holding thatdefendant returni ng to jail from work 4 detail and choosing to bring recently obtained contraband in with him is not 5 compelled to enter the facility as was defendant in Cole , but does so entirely of his 6 own volition.) The issue is not how a defe ndant enters the prison, but how the drugs 7 in his possession enter it. 8 In Cole , we considered what mens reasupports the actus reusrequired to 9 satisfy the statute. We held that “a voluntary act requires something more than 10 awareness.” Cole , 2007-NMCA-099, ¶ 10 (internal quotation marks and citation 11 omitted). The circumstances of Cole , where defendant was aware that he possessed 12 the contraband but was compelled by the circ umstances of his arrest to bring it into 13 the jail, is a world away from the prisoner, who is aware of his custodial status as he 14 begins his day as a re sident in jail, leaves the confines of his cell knowing he is to 15 ultimately return to custody in the facility, and of his own volition picks up 16 contraband along the way with which he intends to return tohis incarceration. “[The 17

actus reus ] requires an ability to choose which course to take—i.e., an ability to 18 choose whether to commit the act that gives rise to criminal liability.” Id. (internal 195 quotation marks and citation omitted). Further, we distinguished a defendant’s 1 voluntary act of possessing the marijuana before he was in government custody and 2 forced to commit his involuntary act of introducing the marijuana into the jail. Id. It 3 was the fact in that case that the contra band entered the facility with the defendant 4 because of the government’s compulsion as a result of defendant’s arrest and not his 5 choice that we reversed the conviction in Cole. Id. ¶¶ 10-11. 6 In this case, however, Defendant was in prison where he knew the contraband 7 was prohibited, and left his domicile on work detail. He knew he would return to the 8 prison afterwards. Defendant saw both th e marijuana and the pipe and knew both 9 were prohibited items. He had a choice: Either leave them where they lay, or pick 10 them up, hide them on his person, and bri ng them into the pris on. Defendant chose 11 the latter course, and as such, he ipso facto voluntarily brought the contraband into the 12 prison when he returned after the work detail. See id. ¶ 10 (discussing that if a 13 reasonable juror could find the introduction of contraband into the jail a reasonably 14 foreseeable consequence of possessing it, th en the charge should not be dismissed as 15 a matter of law). 16 CONCLUSION 17 We affirm the district court’s decisi on to deny Defendant’s motion to dismiss 18 as a matter of law. We affirm Defendant’s convictions. 196 IT IS SO ORDERED. 1

___________________________________ 2 RODERICK T. KENNEDY, Judge 3 WE CONCUR : 4

_________________________________ 5 CYNTHIA A. FRY, Chief Judge 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8