The slip opinion is the first version of an opinion released by the Chief Clerk of the

Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: JULY 20, 2022 3

No. A

- 1

- CA

- 37911 4

STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7

FLORENCIO K. MONCAYO, 8

Defendant

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 10 Drew D. Tatum, District Judge 11
Hector H. Balderas, Attorney General 12 Santa Fe, NM 13 John J. Woykovsky, Assistant Attorney General 14 Albuquerque, NM 15
for Appellee 16

Bennett J. Baur, Chief Public Defender 17 Charles D. Agoos, Assistant Appellate Defender 18 Santa Fe, NM 19
for Appellant 20OPINION

1

YOHALEM , Judge. 2

{1} Defendant Florencio K. Moncayo appeals his conviction s for posses sion of a 3
controlled substance and possession of drug paraphernalia. He challenges the 4
sufficiency of the evidence to support his conviction for possession of a controlled 5
substance, claiming that the presence of a residue, which cannot be measured or 6
used, is insufficient either to establish possession of a controlled substan ce , or to 7
establish Defendant’s knowledge that the residue was a controlled substance. 8
Defendant also contends that his convictions for both possession of a controlled 9
substance and possession of drug paraphernalia violate double jeopardy. Finding no 10

merit in Defendant’s claims, we affirm. 11

B ACKGROUND 12

{ 2 } In the early morning hours on January 21, 2018, police responded to a report 13
that someone was “trying to kick the door in” at an apartment. The officers 14

encountered Defendant at the scene, apparently agitated and yelling loudly. After 15
placing Defendant under arrest for disorderly conduct, the officers found a clear 16
glass pipe containing a white crystalline residue in Defendant’s left front pocket. 17
The substance in the pipe was subsequently t ested and identified as 18
methamphetamine. The glass pipe was admitted into evidence as a state’s exhibit. 19
Following a jury trial, Defendant was found guilty of both possession of a controlled 202

substance (methamphetamine), a fourth degree felony under NMSA 19 78, Section 1

30

- 31

- 23(A)
, (E) (2011, as amended 2021), and possession of drug paraphernalia, 2

then a misdemeanor under NMSA 1978, Section 30

- 31

- 25.1 (2001, as amended 3

2022). 1 4

DISCUSSION 5

I. Sufficiency of the Evidence: Possession of a Controlled Substance 6

{ 3 } We first consider Defendant’s challenge to the sufficiency of the evidence to 7
support his conviction for possession of a controlled substance. To convict a 8
defendant of possession of a controlled substance both possession and knowledge of 9
possession of a controlled substance must be established. Section 30

- 31

- 23(A); UJI 10

14

- 3102 NMRA. In this case, the jury was instructed that to find Defendant guilty 11
they must find beyond a reasonable doubt: (1) “ [ D ] efendant had methamphetamine 12
in his possession ” ; (2) “ [ D ] efendant knew it was methamphetamine ” ; and (3) “ This 13
happened in New Mexico on or about January 21, 2018.” We measure the 14
sufficiency of the evidence against the law as stated in the jury instructions. 15

Goodman v. OS Rest. Servs

. , LLC , 2020

- NMCA

- 019, ¶ 16, 461 P.3d 906 ( “ [J] ury 16

instructions become the law of the case against which sufficiency of the evidence is 17

1 Because the law in effect at the time an offense is committed is controlling, this opinion cites to and relies upon the 2018 version of each statute that applied

. All citations throughout this opinion to Section 30

- 31

- 23 and Section 30

- 31

- 25.1 are to the 2 01 8 version
, unless otherwise indicated. State v. Figueroa , 2020

- NMCA

- 007, ¶ 8, 457 P.3d 983

.3

to be measured.” ( internal quotation marks and citation omitted)). Defendant 1
challenges the sufficiency of the evidence to est ablish both the element of possession 2
and the element of knowledge. 3

A. S tandard of Review 4

{ 4 } When reviewing a sufficiency of the evidence challenge, we must determine 5

“whether substantial evidence of either a direct or circumstantial nature exists to 6
support a verdict of guilt beyond a reasonable doubt with respect to every element 7

essential to a conviction.” State v. Sutphin , 1988

- NMSC

- 031, ¶ 21, 107 N.M. 126, 8
753 P.2d 1314. “A reviewing court must view the evidence in the light most 9
favorable to the state, resolving all conflicts therein and indulging all permissible 10

inferences therefrom in favor of the verdict.” Id. “This [C]ourt does not weigh the 11
evidence and may not substitute its judgment for that of the fact [

- ] finder so long as 12
there is sufficient evidence to support the verdict.” Id. When a sufficiency of the 13
evidence claim requires constru ction of a statute, as Defendant’s claim does here, 14

our review is de novo. See State v. Maldonado , 2005

- NMCA

- 072, ¶ 9, 137 N.M. 15

699, 114 P.3d 379 ( “ [ R ] ecognizing that review of the sufficiency of the evidence 16
supporting a conviction may require a court to engage in statutory construction [ and 17

that such review is de novo ]

. ” ). 184

B. There Is No Error in This Court’s Decisions Holding That a Trace 1 Amount of a Controlled Substance Is Sufficient to Support a Conviction 2 for Possession n or Have Those Decisions B ecome “ S o U nworkable as to 3 B e I ntolerable” 4

{ 5 } Defendant challenges the sufficiency of evidence of a trace amount of a 5
controlled substance found inside a glass pipe to support a conviction for possession 6
of methamphetamine. Defendant acknowledges this Court’s longstanding precedent 7
holding that our Le gislature intended possession of any amount of a controlled 8

substance to violate Section 30

- 31

- 23(E), so long as the substance can be identified. 9

See State v. Grijalva , 1973

- NMCA

- 061, ¶ ¶ 15, 17, 85 N.M. 127, 509 P.2d 894 10

( rejecting the claim that prior law require d a useable amount of a narcotic or other 11
listed controlled substance and holding that “the mere possession of any amount of 12
the prohibited substance is enough to violate the statutory proscription.” (e m phasis 13

added)) ; see also State v. Wo od
, 1994

- NMCA

- 060, ¶ 9, 117 N.M. 682, 875 P.2d 14

1113 (holding that Section 30

- 3 1

- 23 ( D ) (2010) ( Subsection ( E ) in 2018 ) ) 15
unambiguously criminalizes possession of “any clearly identifiable amount of a 16

controlled substance” )

. 17

{ 6 } Defendant contends Grijalva and Wood were implicitly abrogated by our 18
Supreme Court’s decision in State v. Office of the Public Defender ex rel. Muqqddin
, 19

2012

- NMSC

- 029, 285 P.3d 622, or alternatively, Grijalva and Wood should be 20

overturned based on “the recent analytical modifications to statutory construction

. ” 21
Defendant alleges our Supreme Court adopted in Muqqddin. Defendant contends, in 225

the alternative
, Wood and Grijalva should be overturned because the se cases have 1

become “so unworkable as to be intolerable.” 2

{7 } Defendant has a high bar to clear in seeking to overturn longstanding 3
precedent. Defendant must show an obvious error in a prior decision or a special 4
justification before we will depart from precedent. See Herrera v. Quality Pontiac
, 5

2003

- NMSC

- 018, ¶ 15, 134 N.M. 43, 73 P.3d 181 (listing the special justifications 6
that can support overturning precedent) ; see also State v. Radosevich , 2018

- NMSC

7
028, ¶ 21, 419 P.3d 176 (“We do not overturn precedent lightly, but where our 8
analysis convincingly demonstrates that a past decision is wrong, the Court has not 9
hesitated to overrule even recent precedent.” (internal quotation marks and citation 10

omitted)) . A party asking this Court to overturn a decision must generally sh ow 11
either obvious error or that (1) the decision “is so unworkable as to be intolerable”; 12
(2) reversing the decision would not “create an undue hardship” as a result of 13
reliance on the previous decision; (3) the law surrounding the prior decision has 14

“deve loped to such an extent as to leave the old rule no more than a remnant of 15
abandoned doctrine”; or (4) “the facts have changed in the interval from the old rule 16
to reconsideration so as to have robbed the old rule of justification.” Herrera , 2003

- 17

NMSC

- 018, ¶ 15 (internal quotation marks and citation omitted)

. 18

{ 8 } We address first Defendant’s claim that Wood and Grijalva were wrongly 19
decided in light of what Defendant claims is a sea change in statutory analysis 206

adopted by our Supreme Court in Muqqddin. Defendant argues that our Supreme 1
Court’s opinion in Muqqddin abrogates the plain meaning analysis employed by this 2

Court in Wood and Grijalva , requiring that our courts ignore the plain meaning of 3

the words and in stead turn to an analysis of the policy underpinning the statute. 4
According to Defendant, this Court in Wood and Grijalva wrongly applied what 5
Defendant describes as the defunct plain meaning rule to conclude that the statutory 6
language was clear and unamb iguous and, having so concluded, relied exclusively 7
on the language of the statute, overlooking what Defendant claims is legislative 8
intent to punish only possession of a useable or measureable amount of a controlled 9

substance. Defendant further contends t hat our possession of drug paraphernalia 10
statute (which, at the time of this offense, made possession of drug paraphernalia a 11
misdemeanor) was intended by the Legislature to be the proper statutory vehicle for 12
prosecuting possession of a residue of a contr olled substance found inside an item 13
of drug paraphernalia. 14

{ 9 } First, w e are not persuaded by Defendant’s argument that Muqqddin 15
represents a change from the well

- established principles of statutory construction 16
applied by this Court in Grijalva and Wood

. Our Supreme Court, at the outset of its 17
opinion in Muqqddin
, summarized the principles of statutory construction that the 18
Court went on to apply as follows: “Our primary goal is to ascertain and give effect 19
to the intent of the Legislature. In doing so, we examine the plain language of the 207

statute as well as the context in which it was promulgated, including the history of 1
the statute and the object and purpose the Legislature sought to accomplish. ” 2012

- 2

NMSC

- 029, ¶ 13 (internal quotation marks and ci tation omitted). 3

{1 0 } Although acknowledging that policy must play a role, Muqqddin did not 4
abrogate the plain meaning rule. That rule provides that if a state statute is free from 5
ambiguity and the meaning of statutory language is plain , it must be applied as 6

written. State ex rel. Helman v. Gallegos , 1994

- NMSC

- 023, ¶ 2, 117 N.M. 346, 87 1 7

P.2d 1352 . Our Supreme Court in Muqqddin adopted and applied the guidance on 8
statutory construction provided by the Court’s opinion in Helman
, noting that 9

Helman refused to abrogate the plain meaning rule, instead holding that the rule 10
continues to apply where there is no ambiguity in a statute, but admonishing our 11

courts to “ ‘ exercise caution in applying the plain meaning rule
, ’ ” being awar e that a 12
seemingly clear phrase “‘ may mask a host of reasons why a statute, apparently clear 13
and unambiguous on its face, may for one reason or another give rise to legitimate 14
(i.e., nonfrivolous) differences of opinion concerning the statute ’ s meaning. ’ ” 15
Muqqddin , 2012

- NMSC

- 029, ¶ 38 ( quoting Helman , 1994

- NMSC

- 023, ¶ 23 ). 16

Helman recommends that courts read the questioned phrase or word in the context 17
of other sections of the same statute, and look to the history of the statute to discern 18
the policy behind the words to be sure that the phrase i s indeed unambiguous before 19
relying on the plain meaning rule. Importantly, neither Helman nor Muqqddin 208

challenge the central rule of statutory construction, a rule adopted by our Legislature 1
and acknowledged as central to statutory construction by our Sup reme Court in 2
Muqqddin

. “The text of a statute or rule is the primary, essential source of its 3
meaning

. ” NMSA 1978, § 12

- 2A

- 19 (1997). 2 4

{1 1 } Consistent with these principles of statutory construction, the Muqqddin Court 5
looked closely at the language of our burglary statute, NMSA 1978, § 30

- 16

- 3 6

(1971) , which defines the crime of burglary, in relevant part, as “entry of any vehicle, 7

watercraft, aircraft, dwelling or other structure .” The Court criticized some earlier 8
plain

- language constructions of the statute for focusing too narrowly on the ordinary 9
meaning of the word “vehicle” in isolation, without considering either the phrase as 10

a whole
, or the meaning of the phrase in the context of the statute as a whole, 11
repeating the guidance in Helman to exercise caution in applying the plain meaning 12

rule. See Muqqddin , 2012

- NMSC

- 029, ¶ 38. Looking to the language of the statute 13

as a whole, the Court found that the phrase “entry of any vehicle” did not clearly and 14
unambiguously resolve the question before the Court : whether entry into an isolated 15

2 Indeed, f

our years after deciding Mu qq ddin
, our Supreme Court in State v. Holt , 2016

- NMSC

- 011, ¶ 12, 368 P.3d 409, acknowledged th at “ [ i ] t is well

- settled that words in a statute take their ordinary meaning absent legislative intent to the contrary ” and even more recently endorsed the continued application of the plain meaning rule in cases where the statutory language is unambiguous. See Leger v. Leger , 2022

- NMSC

- 007, ¶ 34, 503 P.3d 349 ( “ When the plain meaning of statutory language is as straightforward as it is here, it is our obligation to uphold the statute as written. ” )

.9

part of the vehicle like the gas tank or a wheelhouse, without entering the passenger 1
compartment or trunk , was the type of “entry of any vehicle” intended by the 2
Legislature to commit the crime of burglary. See i d. ¶ ¶ 34

- 38. 3

{1 2 } Having found the phrase at issue ambiguous, the Court then went on to explore 4
the policy the Legislature intended to serve, search ing the history of both the 5
common law of burglary and the history of our burglary statute to assist in 6
deciphering the intent of the Legislature. Because the history of our burglary statute 7
revealed legislative intent to severely punish intrusion into pri vate, enclosed spaces, 8
the Court concluded that the phrase “entry of any vehicle” was intended by the 9
Legislature to apply only when there was an intrusion into the private, enclosed areas 10
of a vehicle. The Court noted, as additional support for its unders tanding of 11
legislative intent, that the Legislature had adopted a statute

— tampering with an 12

automobile

— which made drilling into a gas tank a misdemeanor. See i d. ¶ ¶ 45

- 46
, 13

50

- 51. The Court concluded that it was unlikely the Legislature intended for the 14
burglary statute to supplant the tampering statute. See i d. ¶ 51. 15

{1 3 } We reject Defendant’s claim that Muqqddin abrogated the plain meaning rule. 16
To the contrary, Muqqddin itself applies the principles of statutory construction, 17
which have been longstanding in our jurisprudence ; in a given statutory enactment, 18

b egin with the words expressed by the Legislature. D etermin e whether the words are 19

clear as written
, or if there is lurking ambiguity when the words are read in the 2010

context of the phrase as a whole or the statute as a whole. If the words are clear and 1
the plain meaning unambiguous, apply the words as written. If th ere is ambiguity, 2
use the common law, the history of the legislation, and past precedent in the courts 3
to assist in determining legislative intent. Muqqddin reminds us that it is the 4
judiciary’s responsibility to interpret

— not to rewrite

— the laws it is cal led upon to 5

review. When the Legislature speaks plainly , we must apply the law as written. 6
When terms are ambiguous, we must conduct a search to discern legislative intent. 7

{1 4 } Defendant next argues that even if Muqqddin did not abrogate the plain 8
meaning rule, Grijalva and Wood were wrongly decided. We understand Defendant 9
to claim that this Court misapplied the longstanding principles of statutory 10

construction reiterated in Muqqddin and arrived at a construction of our possession 11

of a controlled substance statute inconsistent wi th legislative intent. We therefore
, 12

turn to this Court’s decisions in Wood and Grijalva to determine if there was obvious 13

error. 14

{1 5 } First, as now directed by our Legislature in Section 12

- 2A

- 19 and by our 15
Supreme Court in Muqqddin , the Wood court began its analysis by looking to the 16

text of the statute. Wood
, 1994

- NMCA

- 060, ¶ 8. Section 30

- 31

- 23(A) states that “[i]t 17
is unlawful for a person intentionally to possess a controlled substance ” (emphasis 18
added), and repeats the same language, again using the phrase possession of “a 19

controlled substance” and adding the phrase possession of “a narcotic
, ” in Section 2011

30

- 31

- 23( D) (2010) , the section making possession of methamphetamine a fourth 1
degree felony. Section 30

- 31

- 23(E). Before concluding that this language clearly 2
expresses legislative intent to punish as a felony possession of any identifiable 3

amount of a controlled substance listed in Section 30

- 31

- 23( E ) , this Court, as 4

M uqqddin directs, expanded its analysis to conside r the language of Section 30

- 31

- 5

23 ( E ) in the context of the other sections of the statute. See Wood
, 1994

- NMCA

6

060 , ¶ 8 . The Wood Court contrasted the Legislature’s choice in Section 30

- 31

- 2 3( B ) 7
to adopt different penalties for possession of specific quant ities of marijuana

— 8
making, for example, possession of “one ounce or less of marijuana” a petty 9

misdemeanor

— with the absence of specification of any amount in Subsections ( D ) 10

and ( E ) and then went on to construe Subsections ( D ) and ( E ) together

. See Wood
, 11

1994

- NMCA

- 060, ¶ 8. 12

{1 6 } Defendant argues that this Court mistakenly believed that the “any amount” 13
language of Section 30

- 31

- 23( D ) was part of Subsection ( E ) when it concluded that 14
our Legislature intended to punish possession of “any amount” of methamphetamine 15
as a felony. We do not agree. This Court’s decisions in Grijalva and Wood are based 16
on the Court’s reading of Section 30

- 31

- 23( D ) , making possession of less dangerous 17
substances a misdemeanor crime, together with the exceptions set out in Subsection 18

( E ) for those substances, including methamphetamine, which are to be punished as 19
a felony. We see no error in the Court’s analysis of the plain language of t he phrase 2012

“a controlled substance,” or “a narcotic drug
, ” without specifying the amount, to 1
convey the Legislature’s intent to criminalize the possession of “any clearly 2

identifiable amount of a controlled substance ,” Wood , 1994

- NMCA

- 060, ¶ 9
, 3

whether that substance was a more dangerous substance listed in Section 30

- 31

- 4

23( E ), or one of the less dangerous substances included in Subsection ( D )

. 5

{1 7 } Defendant also has not convinced us that the result in Wood and Grijalva 6
conflicts with legislative policy concerning possession of a controlled substance that 7

the result is unreasonable or absurd, or that the result in Wood and Grijalva is “so 8

unworkable as to be intolerable.” Herrera , 2003

- NMSC

- 018, ¶ 15 ( internal 9
quotation m arks and citation omitted ); see State v. Davis , 2003

- NMSC

- 022, ¶ 13, 10

134 N.M. 172 , 74 P.3d 1064 (noting that statutes should be interpreted in accord 11
with their spirit and purpose, and not “in a manner that leads to absurd or 12
unreasonable results”). Defendant claims that the Legislature’s policy goal was to 13
prevent the use or trafficking of a contro lled substance and that it is unreasonable, 14
given that policy goal, to criminalize possession of an amount that can neither be 15
used nor trafficked. Defendant’s argument fails to acknowledge the policy concerns 16
that support the Legislature’s enactment of an absolute ban on possession of any 17
amount of a dangerous substance. Making the possession of paraphernalia with a 18
residue of a dangerous substance a felony, so long as the individual has knowledge 19
of the nature of the substance, reasonably deters the posse ssion of those substances, 2013

whether the substance is possessed for personal use, manufacture or sale. Defendant 1
does not identify any permissible reason for possession of methamphetamine. 2

{1 8 } Defendant’s claim that Wood and Grijalva are “so unworkable as to be 3
intolerable” relies on the ability of technology to detect increasingly small amounts 4
of a controlled substance, thereby , according to Defendant, subjecting virtually all 5
persons to prosecution for possession. This argument overlooks the additional 6

e lement required to convict for possession of a controlled substance
, that an accused 7
person have knowledge that they have a controlled substance in their possession. 8
This requirement is not met by possession of an invisible amount on a common 9
object. Our Supreme Court’s decision in State v. Reed
, rules out such a prosecution. 10

See 1998

- NMSC

- 030, ¶ 16, 125 N.M. 552, 964 P.2d 113 (holding that evidence of 11
a quantity of cocaine on a cigarette wrapper, invisible to the naked eye, was not alone 12

sufficient to establish the element of knowledge of possession of a controlled 13

substance). 14

{1 9 } We also do not agree with Defendant that the crime of possession of drug 15
paraphernalia is a lesser offense that was intended by the Legislature to apply in 16
place of Section 30

- 31

- 23 when there is an identifiable residue of a controlled 17
substance on paraphernalia and the individual knows that the substance is a 18
controlled substance. Defendant analogizes to the crime of tampering with a motor 19
vehicle by draining a gas tank or removing a wheel from a vehicle, which the 2014

Muqqddin Court found the Legislature did not intend to be supplanted by the 1
burglary statute. See 2012

- NMSC

- 029, ¶ 51. In contrast, possession of drug 2
paraphernalia has remained a distinct crime after the decisions in Wood and G rijalva
, 3
subject to separate prosecution and punishment. It was not supplanted by the crime 4
of possession of a controlled substance. Other tha n this imperfect analogy to 5
burglary and tampering with a motor vehicle, Defendant provides no support in the 6
history or purpose of the two statutes for his argument that the Legislature intended 7
to ignore possession of a residue of a controlled substance and punish on ly 8
possession of paraphernalia. 9

{ 20 } We note as well that the Legislature has amended both the paraphernalia 10
statute and the possession statute since our decisions in Wood and Grijalva , without 11
amending the language construed by Wood and Grija lva or otherwise indicating its 12
disapproval of those decisions

. 3 We presume that the Legislature is aware of existing 13

law when it amends a statute. See Aguilera v. Bd. of Educ. of Hatch Valley Sch s

. , 14

2006

- NMSC

- 015, ¶ 24, 139 N.M. 330, 132 P.3d 587. “In the absence of a clear 15
legislative directive to abandon existing law, we continue to apply it .” Id. 16

3 In its 2022 session, our Legislature decriminalized possession of drug paraphernalia, reducing what was a misdemeanor to a penalty assessment. Section 30

- 31

- 25.1(C) . We do not comment on this legislative change because the relevant amendment to Section 30

- 31

- 25.1 was enacted after the commission of the offense at issue in this case.15

{ 2 1} As stated, we are not persuaded that Muqqddin rejects the plain meaning 1
approach to Section 30

- 31

- 23 applied by this Court in Wood and Grijalva . We 2
additionally conclude that Wood and Grijalva were not wrongly decided, nor has the 3
longstanding construction of Section 30

- 31

- 23 has become “so unworkable as to be 4

intolerable .” Defendant has not carried his burden of “convincingly 5
demonstrate[ing] that a past decision is wrong.” Radosevich , 2018

- NMSC

- 028, ¶ 21 6
(internal quotation marks and citation omitted) . In sum, we see no reason to depart 7
from precedent. See State v. Gonzales , 1990

- NMCA

- 040, ¶ 30, 110 N.M. 218, 794 8
P.2d 361 (“Until we are faced with a case in which there is a reason to depart from 9

a precedent, we will continue to apply it.”). We are mind ful that “the power to define 10
crimes is a legislative function.” State v. Moss , 1971

- NMCA

- 117, ¶ 4, 83 N.M. 42, 11

487 P.2d 1347. Th is Court will not substitute its judgment for the Legislature’s. 12

II. Sufficiency of the Evidence of Defendant’s Knowledge of the Na ture of 13 the Residue 14

{ 22 } Defendant further contends that the evidence was insufficient to establish 15
Defendant’s knowledge that the residue was a controlled substance or a narcotic. 16
When reviewing a challenge to the sufficiency of the evidence , we must determine 17

“whether substantial evidence of either a direct or circumstantial nature exists to 18
support a verdict of guilt beyond a reasonable doubt with respect to every elem ent 19

essential to a conviction.” Sutphin , 1988

- NMSC

- 031, ¶ 21

. 2016

{ 23 } As noted above, knowledge may fairly be disputed in situations where trace 1
amounts of controlled substances are at issue and there is no other evidence tending 2
to establish knowledge of the nature of the substance. See Reed , 1998

- NMSC

- 030, 3
¶¶ 14

- 18 (holding that the ther e was insufficient evidence to prove knowledge where 4
the defendant possessed a wrapper bearing a trace amount of a controlled substance 5

that was not immediately apparent to the human eye, and where no other 6
corroborating evidence showing knowledge was pres ented). Circumstantial 7
evidence, however, such as possession of drug paraphernalia , may support a 8
reasonable inference of knowing possession of a controll ed substance contained 9

therein. See id. ¶¶ 16

- 17 (acknowledging that trace amounts of contro lled substances 10
found on drug paraphernalia may corroborat e a defendant’ s knowledge ); Wood
, 11

1994

- NMCA

- 060, ¶¶ 13

- 14 (observing that knowledge, which is rarely susceptible 12
to direct proof, may be established by circumstantial evidence ; and holding that 13
possessio n of drug par aphernalia is sufficient to give rise to a reasonable inference 14
of knowing possession of a trace amount of a controlled su bstance contained in the 15
paraphernalia )

. 16

{ 24 } The State’s evidence conclusively established that Defendant was in 17
possession of a clear glass pipe containing the white crystalline residue that proved 18
to be methamphetamine. Defendant’s possession of a glass pipe in his pocket, with 19
a visible white residue inside the pipe, was sufficient to create a rea sonable inference 2017

that Defendant knew that the residue was a controlled substance. Although a glass 1
pipe can have other uses, this was not the sort of pipe used to smoke tobacco or other 2
legal substances. 4 Its presence in Defendant’s pocket with a visible white residue 3
clinging to it was sufficient both to allow the jury to identify the pipe as drug 4
paraphernalia and to support a reasonable inference that Defendant knew that the 5

white substance inside it was a controlled substance. S ee generally NMSA 1978, 6

§ 30

- 31

- 2(V)(12) (a) (2017 , amended 2021 ) (defining “drug paraphernalia” as 7

“ materials of any kind that are used, intended for use or designed for use in

. . . 8
ingesting, inhaling or otherwise introducing into the hu man body a controlled 9
substance” and spe cifically including glass pipes) . Although Defendant argues that 10
the testimony was insufficient for the jury to find that the residue was clearly visible 11
to the naked eye, the pipe was introduced into evidence, allowing the jury to examine 12
the pipe and the residue. We, therefore, reject Defendant’s challenge to the 13
sufficiency of the evidence to support his conviction for possession of a controlled 14

substance. 15

4 See Conyers v. State , 164 So. 3d 73, 76

- 77 (Fla. Dist. Ct. App. 2015) (describing the kind of glass pipe used in this case as “a short glass tube of a variety that, over the last thirty years, has become known as a ‘ pipe ’ because it is used to heat illegal drugs.”18

III. Double Jeopa rdy 1

{ 25 } Defendant contends that his convictions for possession of a controlled 2
substance and possession of drug paraphernalia based on unitary conduct violate 3
double jeopardy. “ We review d ouble jeopardy claims de novo. ” State v. Garcia
, 4

2009

- NMCA

- 107, ¶ 8, 147 N.M . 150, 217 P.3d 1048. 5

{ 26 } “ Double jeopardy protects against multiple punishments for the same 6

offense. ” State v. Silvas
, 2015

- NMSC

- 006, ¶ 8, 343 P.3d 616. “ Cases [ such as this ] 7
involving violations of multiple statutes are ‘ double

- descriptio n ’ cases. ” Id. In 8
reviewing a double

- description challenge where the conduct at issue is unitary , we 9

must determine if the Legislature intended multiple pun ishments

. See Swafford v. 10

State , 1991

- NMSC

- 043, ¶ 9, 112 N.M. 3, 810 P.2d 122 3 (“[T] he polestar guiding 11

courts is the [L] egislature ’ s intent to authorize multiple punishments for the same 12
offense.”). 13

{ 27 } We look first to whether either statute tells us whether the Legislature intended 14
to create separately punishable offenses. See i d. ¶ 8. Finding no such expression in 15
either the possession or drug paraphernalia statute, we proceed to compare the 16

elements o f the two offenses to determine if each statute requires proof of an element 17

the other does not. See i d. ¶¶ 9

- 21. In comparing the elements of the two offenses, 18
we look to the State’s theory of the case rather than considering the elements in the 19

abstract. See State v. Gutierrez , 2012

- NMCA

- 095, ¶ 14, 286 P.3d 608 (explaining 2019

that the modified Blockburger 5 approach “applies when one of the statutes at issue 1
is written with many alternatives, or is vague or unspecific” and that where this is 2

true “a reviewing court should look at the legal theory of the offense that is charged[] 3
instead of looking at the stat ute in the abstract when comparing elements under 4
Blockburger

. ” (internal quotation marks and citation omitted)). 5

{ 28 } Applying this test, we conclude that Defendant’s convictions required proof 6
of distinct elements: one required proof that Defendant know ingly possessed a 7
controlled substance (specifically, methamphetamine); and the other required proof 8
that Defendant possessed paraphernalia (specifically, a glass pipe), with specific 9
intent to use it. The fact that each crime requires proof of at least on e different 10
element gives rise to a presumption that the Legislature intended to punish the 11
offenses separately. S ee Silvas , 2015

- NMSC

- 006, ¶ 12 ( “If one statute requires proof 12
of a fact that the other does not, then the Legislature is presumed to have int ended a 13
separate punishment for each statute without offending principles of double 14
jeopardy. ”). 15

{ 29 } We understand Defendant to contend that the elements of the offenses should 16

be deemed coextensive, because the same evidence

— Defendant’s possession of a 17

p ipe containing methamphetamine

— supplies the basis for both convictions. 18

5 Blockburger v. Unite d States , 284 U.S. 299 (1932).20

However, the fact that proof of one offense may also provide direct or indirect proof 1
of another does not pose a double jeopardy problem. This overlap in evidence is 2

common where the c onduct is unitary. Even where conduct is unitary, however, 3
further analysis of legislative intent is required to determine if the Legislature 4
intended to punish the conduct under two separate statutes. Insofar as each offense 5
required proof of one or more element s that the other did not (e.g.) knowing 6
possession of methamphetamine versus possession of paraphernalia with specific 7

intent), neither offense is subsumed within the other, and the modified Blockburger 8
test gives rise to a presumption that the Legislature intended the offenses to be 9

sep arately punished. See State v. Almeida , 2008

- NMCA

- 068, ¶ 1 0, 144 N.M. 235, 10

185 P.3d 1085

. 11

{ 30 } T hat presumption , however, “ is not conclusive; it may be overcome by other 12

indicia of legislative intent. ” Id. ¶ 11 (internal quotation marks and citation omitted)

. 13

This Court in Almeida analyzed the factors that weigh in favor of and against 14
separate punishments in the context of the two offenses at issue here. See i d. ¶¶ 14

- 15
16. We do not repeat that analysis here but instead adopt the reasoning of this Court 16

in Almeida . This Court held in Almeida that, when the drug paraphernalia was a 17
container used to hold the narcotic in Defendant’s possession, the Legislature did 18
not intend to punish these two crimes, which almost always occur together as 19
separate offenses. Id. ¶ 18. Th is Court distinguished “the need for a container,” 2021

something “inherent in the act of possessing [a small personal supply of a ] controlled 1
substance,” from possession of other sorts of paraphernalia u sed to ingest drugs and 2
that are not an inherent part of possessing the drug. Id. ¶¶ 18

- 19. 3

{ 3 1} This case falls squarely into the category of possession of paraphernalia that 4
is usually associated with drug use but is not a container inherent in the act of 5
possession. We agree with this Court’s assessment in Alameida “ that ordinarily, i.e., 6

when the paraphernalia at issue are items usually associated with drugs, the statutes 7
that punish the possession of controlled substances and the possession of drug 8
paraphernalia are intended to punish distinct wrongs. ” Id. ¶ 20 (noting that “ two 9
punishments would appear to be permitted when

. . . the drugs are found inside the 10
pipe or inside the syringe ”). W e conclude that when the drug paraphernalia is used 11

to ingest drugs, rather than solely as a container to hold drugs, our Legislature 12

intended separate punishments. 13

{ 32 } In summary, after comparing the elements of the offenses and considering 14
other indicia of legislative intent, we conclude that the presumption of separate 15
punishments stands. Although Defendant invokes the rule of lenity, this is not a case 16
in which insurmountable ambiguity exists. We therefore deem the rule inapplicable, 17
and we reject Defendant’s double jeopardy challenge. 18

CONCLUSION 19

{ 33 } For the foregoing reasons, we affirm. 2022

{ 34 } IT IS SO ORDERED. 1

__________________________________ 2 JANE B. YOHALEM, Judge 3

WE CONCUR: 4

________________________________ 5 J. MILES HANISEE , Chief Judge 6

________________________________ 7 JACQUELINE R. MEDINA , Judge 8