IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 29,173 4 ARNOLD CLINE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler Gray, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Liane E. Kerr 12 Albuquerque, NM 13 for Appellant 14 MEMORANDUM OPINION 15 KENNEDY, Judge. 16 Defendant appeals his conviction for po ssession of a controlled substance. We 17 proposed to affirm in a calendar noti ce, and Defendant ha s responded with a 18 memorandum in opposition. We are not persuaded by Defendant’s arguments, and 19 we therefore affirm. 20 Police went to a residence to question De fendant about a matter unrelated to the 212 charge in this case. After Defendant wa s read his Miranda rights, he told Officer 1 Edmonson that he had paraphernalia on his person that contained drug residue. 2 Defendant handed the paraphern alia to the officer who handed it straight to Officer 3 McGee. [DS 3] Officer Edmonson testified that Defendant stated that he had syringes 4 “and stuff” in the residence and that Defendant took the o fficers into the residence and 5 pointed out the items. [DS 4] Officer Caud ill testified that Defendant took him to his 6 room and pointed out some items of drug paraphernalia. OfficerCaudill seized two 7 loaded syringes from under the bed. [DS 5] All of the items th at were seized were 8 given to Officer McGee. [DS 5] Officer Sanchez testified about chain of custody of 9 the items seized. [DS 6] 10 The district court admitted into evidence St ate’s Exhibits 1, 2, 5, and 6. Exhibit 11 1 was a cigar box in which the two syringe s were found; Exhibti 2 was the syringes 12 taken from the room; Exhibit 5 was the crime laboratory report; and Exhibit 6 was the 13 container with residue taken from Defendant at the beginning of the encounter. 14 According to Defendant the container withresidue was never tested by the crime 15 laboratory. Defendant did not object to the admission of Exhibits 2 and 5. All of the 16 exhibits were admitted into evidence. 17

Admission of State’s Exhibits 183 Defendant continues to claim that the district court erred in admitting the State’s 1 exhibits into evidence. Defendant conte nds that Exhibit 1 was objected to based on 2 foundation, but should have been objected to based on prejudice; and Exhibit 6 should 3 have been objected to based on relevance and lack of probative value, but that it is not 4 clear what objection was made at trial. [MIO 2] Defendant claims that the failure to 5 object to admission of Exhibits 2 and 5, and any defect in the objections to Exhibits 6 1 and 6 should be taken into consideration when reviewi ng his ineffective assistance 7 of counsel claim. 8 As noted in our calendar notice, we do not consider argumen ts that were not 9 raised in the district court, except when those arguments involve matters of 10 jurisdictional or fundamental error. See In re Aaron L ., 2000-NMCA-024, ¶ 10, 128 11 N.M. 641, 996 P.2d 431. Defendant did not obj ect to the admission of Exhibits 2 and 12 5, and it appears that Defendant did not object to the admission of Exhibit 6. 13 Therefore, Defendant’s arguments were not preserved for appeal. Moreover, as 14 discussed in our notice, evenif Defendant made an obj ection to Exhibit 6 based on 15 relevance and/or lack of probative value, the fact that Defendant admitted that he 16 possessed a container used for methamphetamine that now contained residue 17 establishes that admission of Exhibit 6 was proper in that it was relevant and probative 18 to the charge of possession of a controlled substance. Also, the testimony establishing 194 chain of custody of the seized items supports the district court’s decision to overrule 1 Defendant’s objection to the admission of Exhibit 1. 2 Jury Instruction 3 In our calendar notice, we discussed the jury instruction on constructive 4 possession in connection with De fendant’s argument that the jury instruction confused 5 or misdirected the jury. We noted th at constructive possession exists when a 6 defendant has knowledge of drugs and exercises control over the drugs. See State v. 7 Phillips , 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d 421. We proposed to hold 8 that, in this case, Defendant had the requisite knowledge ba sed on the evidence 9 showing that Defendant admitted that he possessed the container with drug residue, 10 pointed out syringes and other drug paraphernalia located in a room in the residence, 11 and admitted that it was his bedroom. [RP 7] Therefore, even if Defendant did not 12 have exclusive control over the bedroom , based on this additional evidence, an 13 inference could be made that Defendant had constructive possession over the drugs 14 and paraphernalia. Id. 15 In response, Defendant argues that he tendered his own instruction and objected 16 to the denial of his tendered instruction. [MIO 7] Therefore, the district court was 17 alerted to Defendant’s argument with regard to the instruction given to the jury. We 18 agree that Defendant preserved his argument. However, as disc ussed in our calendar 195 notice, based on the instruc tion that was given and the evidence presented at trial, 1 there is no support for Defendant’s argument that the instruction confused or 2 misdirected the jury. 3 Ineffective Assistance of Counsel 4 Defendant again claims that his counselwas ineffective for failing to object to 5 the admission of Exhibits 2 and 5, for failing to properly object to Exhibits 1 and 6, 6 and for failing to argue that his confession was inadmissible. [MIO 8-9] Defendant 7 contends that defense counsel ’s failures cannot be categori zed as tactics and strategy 8 and that defense counsel’s actions resulte d in a miscarriage of justice and amounted 9 to plain error. 10 In support of his arguments, Defendant cites to a number of cases, including 11 State v. Chacon , 80 N.M. 799, 461 P.2d 932 (Ct. App. 1969). In Chacon , this Court 12 stated that we cannot look at counsel’s trial tactics “with the benefit of hindsight” in 13 order to determine how c ounsel might have acted. Id. at 801, 461 P.2d at 934. We 14 held that a claim of ineffective assistance of counsel cannot be found based on the 15 mere fact that a defendant was not successf ul at trial; or based on a showing of bad 16 tactics or strategy, carelessness, or counsel’s mistakes or inexperience. Id. On appeal, 17 we must affirm unless there is affirmative evidence establishing that there was a 18 miscarriage of justice, in that the trial was “a sham, a far ce, or a mockery.” Id. A 196 failure to make an objection is a matter of trial tactics and does not establish 1 ineffective assistance of counsel. See State v. Rodriguez , 107 N.M. 611, 615-16, 762 2 P.2d 898, 902-03 (Ct. App. 1988). Furtherm ore, the evidenceestablished that 3 Defendant admitted that hepossessed a container withdrug residue and that he 4 pointed out other illegal items in a room that he admitted was his room. Therefore, 5 to the extent that defense counsel faile d to object to the admission of Defendant’s 6 “confession,” counsel is not ineffective for failing to make an objection that is not 7 supported by the record. See State v. Chandler , 119 N.M. 727, 735, 895 P.2d 249, 8 257 (Ct. App. 1995). Finally, the rule re garding plain error “applies only if the 9 alleged error affected the subs tantial rights of the accused.” State v. Contreras , 120 10 N.M. 486, 492, 903 P.2d 228, 234 (1995), limited on other grounds as recognized by 11 State v. Rackley , 2000-NMCA-027, ¶ 25, 128 N.M. 761, 998 P.2d 1212. Because the 12 evidence presented at trial s howed that the syringes, the box they were contained in, 13 and the container with drug residue were offered by Defe ndant to police, and because 14 there was evidence presented in support of the admission of the laboratory report, the 15 failure to object to the admission of those items did not amount to plain error. 16 Sufficiency of Evidence to Support the Conviction 17 Defendant claims that his mere presence in the vicinity was not sufficient to 18 show that he possessed a controlled substance. However, Defendant admitted that he 196 had a container used for holding methamphetamine and that there was residue in the 1 container. Defendant also pointed out illegal items, including syringes containing a 2 controlled substance, in a room that he cl aimed was his room. This was sufficient to 3 show that Defendant possessed a controlled substance and to show that the conviction 4 was not based on Defendant’s merepresence in the vicinity. See State v. 5 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (“In reviewing the 6 sufficiency of the evidence, we must view the evidence inthe light most favorable to 7 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the 8 evidence in favor of the verdict.”). 9 Defendant continues to claim that his confessions or admissions were the only 10 link between him and the controlled substances found in the re sidence. Defendant 11 argues that the corpus delicti of the po ssession offense cannot be based solely on 12 confessions or admissions. Contrary to Defendant’s claim, his admissions and/or 13 confessions were not the sole basis fo r the possession conviction. Not only did 14 Defendant admit that he had a container with drug resi due on his person, he also 15 produced that container for the officers. In addition, Defendant pointed to locations 16 in the room where controlled substances or paraphernalia could be found, and based 17 on the assistance from Defendant, officers wereable to find controlled substances and 18 paraphernalia in that room. Based on all of the evidence presented at trial, viewing 197 the evidence in the light most favorable to the verdict, indulging all inferences in favor 1 of the verdict, and resolving all conflicts in favor of the verdict, there was sufficient 2 evidence to support Defendant’s conviction for possession of a controlled substance. 3

Fundamental and Cumulative Error 4 Defendant claims that the cu mulative impact of errors at trial was so prejudicial 5 that he was deprived of a fair trial. Defendant further claims that the cumulative error 6 resulted in fundamental error. Defendant bases his cumulative-error argument on 7 counsel’s failure to object to evidence. As we have discussed, counsel’s decision to 8 not object to the admission of certain evidence did not amount to error, and we find 9 no other error in the district court proceedings. See State v. Trujillo , 2002-NMSC10 005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (stating that the cumulative error doctrine is 11 strictly applied and may not be successf ully invoked if the record as a whole 12 demonstrates that the defendant received a fair trial). 13 Defendant also claims that the question of his guilt is so doubtful that it would 14 shock the conscience to allow the conviction to stand, or it amounts to a miscarriage 15 of justice. As we have discussed, ther e was sufficient evidence to support Defendant’s 16 conviction and we find no error in th e proceedings below. The doctrine of 17 fundamental error does not apply in this case. 188 For the reasons discussed in this opini on and in our calendar notice, we affirm 1 Defendant’s conviction. 2 IT IS SO ORDERED. 3

___________________________________ 4 RODERICK T. KENNEDY, Judge 5 WE CONCUR : 6

___________________________ 7 ROBERT E. ROBLES, Judge 8

___________________________ 9 TIMOTHY L. GARCIA, Judge 10