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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ________________

Filing Date: March 10, 2022

No. A-1-CA-38525

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

FELICIA A. GARCIA, FELICIA GARCIA,

a/k/a FELICIA ANN GARCIA,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Charles W. Brown, District Judge

Hector H. Balderas, Attorney General

Van Snow, Assistant Attorney General

Santa Fe, NM 

for Appellant

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Mark A. Peralta-Silva, Assistant Appellate Defender

Albuquerque, NM 

for Appellee
OPINION

MEDINA, Judge.

{1} The State appeals the district court’s order granting Defendant’s motion, filed 

before trial, pursuant to Rule 5-601(B) NMRA (1999) (amended as Rule 5-601(C) 

NMRA), and State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, 

to dismiss one count of possession of a controlled substance (methamphetamine), 

contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2021).1 The State 

argues that the district court erred in dismissing the charge because the district court 

(1) incorrectly determined that Section 30-31-23 does not define a unit of 

prosecution, and (2) erred in determining there was insufficient indicia of 

distinctness between the two acts because the State had yet to present evidence at 

trial. We reverse. 

BACKGROUND

{2} Defendant stipulated to the following facts set forth in the criminal complaint 

for purposes of her motion to dismiss. Defendant was a passenger in a vehicle that 

was the subject of a traffic stop. While speaking to the driver of the vehicle, the 

officer noticed Defendant was not wearing her seatbelt. Upon request, Defendant 

 

1Because Defendant was charged under the 2011 version of the statute, 

references in this opinion to Section 30-31-23 refer to the 2011 version unless stated 

otherwise. See State v. Lucero, 2007-NMSC-041, ¶ 14, 142 N.M. 102, 163 P.3d 489

(“We have held that the law, at the time of the commission of the offense, is 

controlling.” (internal quotation marks and citation omitted)).
2

provided the officer with her name and other identifying information. A subsequent 

records check revealed an outstanding warrant for Defendant’s arrest. During a 

search incident to arrest, the officer found a clear bag containing a substance that 

tested positive for heroin in Defendant’s purse. Shortly thereafter, during an 

inventory search of the vehicle, a bag containing a substance that tested positive for 

methamphetamine and a clear glass pipe were found in the outer pocket of the center 

console near the driver’s seat. 

{3} Defendant admitted that both bags belonged to her. Relevant to this appeal, 

an indictment charged Defendant with two counts of possession of a controlled 

substance, contrary to Section 30-31-23, the first count for possession of heroin and 

the second for possession of methamphetamine. Prior to trial, Defendant filed a 

motion to dismiss the second count. In support of her motion to dismiss, Defendant 

argued that that statute does not allow multiple charges for one act of possession of 

controlled substances and there was insufficient evidence to show two distinct acts 

of possession. After hearing argument by the parties, the district court dismissed the 

second count of possession of a controlled substance. The district court found, in 

part, (1) “Section 30-31-23 does not define the unit of prosecution”; (2) Defendant’s 

acts of possession were not sufficiently distinct to support two charges; (3) the rule 

of lenity applies; and (4) Defendant could only be charged with one count of 
3

possession of a controlled substance. Pursuant to NMSA 1978, Section 39-3-3(B)(1) 

(1972), the State appealed. 

DISCUSSION

{4} The State argues that the district court erred in dismissing the second count of 

possession of a controlled substance because Section 30-31-23 defines the unit of 

prosecution as each controlled substance a defendant possesses. Defendant contends 

that the language of the statute is “insurmountably ambiguous,” and therefore the 

rule of lenity should apply to our analysis. 

{5} “The Fifth Amendment of the United States Constitution, made applicable to 

the states by the Fourteenth Amendment Due Process Clause, and Article II, Section 

15 of the New Mexico Constitution each protect defendants against multiple 

punishments for the same offense.” State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 38, 

136 N.M. 309, 98 P.3d 699 (citation omitted). When a defendant faces multiple 

punishments under the same statute, we apply a “unit of prosecution” analysis to 

determine “whether the Legislature intended punishment for the entire course of 

conduct or for each discrete act.” State v. Benally, 2021-NMSC-027, ¶ 10, 493 P.3d 

366 (alteration, internal quotation marks, and citation omitted); see also State v. 

Ramirez, 2018-NMSC-003, ¶ 46, 409 P.3d 902 (clarifying that “the unit of 

prosecution defines how many offenses the defendant has committed” (emphasis, 

internal quotation marks, and citation omitted)). To determine Legislative intent with 
4

respect to the unit of prosecution for a particular criminal offense, appellate courts 

apply a two-step test. Ramirez, 2018-NMSC-003, ¶ 47. First, we “analyze the statute 

to determine whether the Legislature has defined the unit of prosecution and, if the 

statute spells out the unit of prosecution, then the court follows that language and 

the inquiry is complete.” Benally, 2021-NMSC-027, ¶ 13 (internal quotation marks 

and citation omitted). The interpretation of a statute is a question of law that we 

review de novo. Id. ¶ 11.

{6} “To discern the Legislature’s intent, we begin our analysis with the plain 

language [of the statute].” Id. ¶ 25. Section 30-31-23(A) provides in relevant part

that “[i]t is unlawful for a person intentionally to possess a controlled substance.” 

The Legislature defined a “controlled substance” as “a drug or substance listed in 

Schedules I through V of the Controlled Substances Act.” NMSA 1978, § 30-31-

2(E) (2017, amended 2021). Both Section 30-31-23(A) and Section 30-31-2(E) 

reference controlled substances in the singular. We find the Legislature’s reference 

to controlled substance in the singular significant because “legislative reference to 

an item in the singular suggests that each instance of that item is a separate unit of 

prosecution.” Ramirez, 2018-NMSC-003, ¶ 52 (internal question marks and citation 

omitted). Grammatically, a statute containing a singular direct object that is the 

recipient of the action in the statute supports the conclusion that the Legislature 

intended the unit of prosecution to be each individual object. Compare id. ¶¶ 52-53,
5

with State v. Olsson, 2014-NMSC-012, ¶ 21, 324 P.3d 1230 (“[T]he use of the word 

‘any’ in the statute only compounds the ambiguity.”), and State v. DeGraff, 2006-

NMSC-011, ¶ 33, 139 N.M. 211, 131 P.3d 61 (“[W]e are not persuaded that the 

statute’s use of the word ‘any’ shows the Legislature’s intent to permit only a single 

conviction for all tampering with a single crime scene.”). Therefore, we conclude 

that the plain language of Section 30-31-23(A) defines the unit of prosecution for a 

person in simultaneous possession of each distinct controlled substance. 

Consequently, our inquiry is complete and we do not proceed to the second step of 

the analysis. See Benally, 2021-NMSC-027, ¶ 13. Based on the foregoing, we hold 

that if the State can prove a defendant simultaneously possessed distinct controlled 

substances, a defendant can be charged and convicted for each distinct controlled 

substance in his or her possession in violation of Section 30-31-23(A).

{7} Our interpretation of Section 30-31-23(A) here is supported by our Supreme 

Court’s interpretation of similar language in other statutes involving controlled 

substances. See, e.g., State v. Smith, 1980-NMSC-059, ¶ 11, 94 N.M. 379, 610 P.2d 

1208 (holding that the merger of four counts of trafficking with intent to distribute 

was in error because the defendant was trafficking four distinct drugs); see also State 

v. Quick, 2009-NMSC-015, ¶¶ 21-22, 146 N.M. 80, 206 P.3d 985 (vacating the 

conviction of simple possession because the defendant could not be convicted of 
6

simple possession and possession with intent to distribute for only possessing one 

drug). 

{8} To the extent that Defendant argues the language of the statute is ambiguous 

and therefore policy concerns should instead guide our analysis in determining the 

unit of prosecution, we disagree. Defendant concedes that Section 30-31-23 refers 

to an item in the singular and, as stated above, the unit of prosecution for Section 

30-31-23 is each distinct controlled substance. “[I]f the statute spells out the unit of 

prosecution, then the court follows that language and the inquiry is complete.” 

Benally, 2021-NMSC-027, ¶ 13 (internal quotation marks and citation omitted). 

Therefore, we do not engage in an analysis of policy concerns that could guide the 

Legislature in creating the Controlled Substances Act. See id. ¶¶ 25-35 (analyzing 

legislative history and possible legislative purpose of the statute after analyzing the 

language of the statute and determining it was ambiguous on its face). 

{9} Finally, to the extent Defendant contends reliance on the singular noun in 

Section 30-31-23, to discern the unit of prosecution in that statute runs contrary to 

the Uniform Statute and Rule Construction Act (USRCA), NMSA 1978, § 12-2A5(A) (1997), which states that “[u]se of the singular number includes the plural, and 

use of the plural number includes the singular,” we disagree. The USRCA only 

applies to statutes enacted on or after the effective date, or adopted after its own 

adoption. NMSA 1978, § 12-2A-1(B) (1997). The Controlled Substances Act was 
7

adopted in 1972. See 1972 N.M. Laws, ch. 84, § 1. The USRCA was adopted in 

1997. See 1997 N.M. Laws, ch. 173, § 1. Therefore, it does not apply to our analysis 

here. 

{10} In this case Defendant was charged with possession of heroin, a Schedule I 

controlled substance under NMSA 1978, Section 30-31-6(B)(10) (2017, amended 

2021), and methamphetamine, a Schedule II controlled substance under NMSA 

1978, Section 30-31-7(A)(3)(c) (2007, amended 2021). Defendant’s separate 

charges for the simultaneous possession of two distinct controlled substances did not 

violate Defendant’s double jeopardy rights, and therefore, the district court erred in 

dismissing Defendant’s second count of possession of controlled substance charge. 

Because we hold the district court erred in finding that Section 30-31-23 defines a 

unit of prosecution, we need not address the State’s additional argument.

CONCLUSION

{11} We reverse the district court’s order dismissing one count of the indictment 

and remand for further proceedings consistent with this opinion.

{12} IT IS SO ORDERED.

______________________________

JACQUELINE R. MEDINA, Judge

WE CONCUR:
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__________________________________

SHAMMARA H. HENDERSON, Judge

__________________________________

GERALD E. BACA, Judge