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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. No. 34,181 4 CRAIG C. BENAVIDEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Elizabeth Ashton, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VARGAS, Judge. 192 {1} Defendant Craig Benavidez was convictedof possession of methamphetamine, 1 possession of drug paraphernalia, no driver’s license, and no insurance. Defendant 2 argues that the evidence was insufficient to support his convictions and that the 3 prosecutor made improper comments during closing that contributed to the guilty 4 verdicts. For the reasons that follow, we affirm Defendant’s convictions. 5 BACKGROUND 6 {2} At trial, Deputy Joe Medina, of the Doña Ana County Sheriff’s Department, 7 testified that he stopped Defendant for driving with expired license plates. Defendant 8 had a female passenger in the vehicle. Deputy Medina testified that on stopping 9 Defendant, he parked directlybehind Defendant’s vehicle and that he could see clearly 10 into the vehicle from his position because it had no glass on the rear window. Deputy 11 Medina asked Defendant for his driver’s li cense, registration, and proof of insurance, 12 and Defendant responded that he did not have a driver’s license on him. Defendant 13 was also unable to produce proof of insuran ce or registration for the vehicle. Deputy 14 Medina conducted a license inquiry based on Defendant’s name and date of birth, 15 which showed that Defendant had outstanding warrants for his arrest. 16 {3} Deputy Medina then removed Defendant from the vehicle, handcuffed him, and 17 placed him in the rear seat of his patrol car. Deputy Medina testified that during this 18 time, he was able to see the passenger through his peripheral vision. After about a 193 minute, Deputy Juan Flores arrived. Both officers testified that they watched the 1 passenger for officer safety reasons while she remained in the vehi cle and that she did 2 not move. Deputy Medina then conducted an i nventory search of the vehicle. At that 3 point, the passenger had been in the vehicl e for two to three minutes. The officers 4 removed her from the vehicle, allowing her to retrieve her purse from the passenger 5 side floorboard. During the vehicle search, Deputy Medina located a baggie of 6 methamphetamine and a glass pipe of the type used to smoke methamphetamine. 7 Deputy Medina testified that the pipe and the baggie were “right next to each other” 8 underneath the driver’s seat near the driver’s side door. The officers then detained and 9 handcuffed the passenger befo re continuing the search. No other contraband was 10 discovered. At that point the officers re leased the passenger from detention, and 11 Deputy Flores gave her a ride home. Deputy Medina testified thathe did not believe 12 that the passenger was involved in illegal activity because the drugs had been 13 discovered under the driver’s seat. 14 {4} Defendant was then transported to the sheriff’s station. Agent Edgar Vega of 15 the Metro Narcotics Task Force testifie d that Defendant volunteered a rambling 16 unsolicited explanation for the presence of th e drugs, stating that he had enemies who 17 might have planted the contraband. Defendant also said th at he did yard work and 18 often put trash in the bed of the truck, suggesting he may have inadvertently placed 194 the methamphetamine and pipe in the vehicle. Defendant told Agent Vega that he had 1 a driver’s license, but that it was not on him that day because it had gone through the 2 washing machine, and that the truck wa s not insured or registered. Agent Vega 3 testified that the interview was not recordedbecause he believed the recorder to be on 4 and recording the interview but only realizedafter the interview was over that it had 5 not been on. 6 {5} Defendant was charged with possessi on of methamphetamine, contrary to 7 NMSA 1978, Section 30-31-23(E) (2011); po ssession of paraphern alia contrary to 8 NMSA 1978, Section 30-31-25.1(A) (2001); having no driver’s license, contrary to 9 NMSA 1978, Section 66-5-2(A)(1) (2013); havi ng no proof of insurance, contrary to 10 NMSA 1978, Section 66-5-205(B) (2013); and having expired registration plates, 11 contrary to NMSA 1978, Section 66-3-18(B) (2007). Following a jury trial, Defendant 12 was convicted on all counts and now appeals. 13 DISCUSSION 14 1. Sufficiency of the Evidence 15 {6} Defendant challenges the sufficiency of the evidence to support his convictions 16 for having no driver’s license, having no proof of insurance, possession of drug 17 paraphernalia, and possession of methamphetamine. “The test for sufficiency of the 18 evidence is whether substantial evidence of either a direct or circumstantial nature 195 exists to support a verdict of guilt beyond a reasonable doubt with respect to every 1 element essential to a conviction.” State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 2 94, 140 P.3d 515 (internal quotation marks and citation omitted). “We do not reweigh 3 the evidence or substitute our judgment for th at of the fact finder as long as there is 4 sufficient evidence to support the verdict.” State v. Gipson , 2009-NMCA-053, ¶ 4, 5 146 N.M. 202, 207 P.3d 1179. “In reviewing the sufficiency of the evidence, we must 6 view the evidence in the li ght most favorable to the guilty verdict, indulging all 7 reasonable inferences and resolving all c onflicts in the evidence in favor of the 8 verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 9 {7} Defendant first argues that the evid ence was insufficient to support his 10 conviction for driving without a license. Defendant was charged with violating 11 Section 66-5-2(A)(1), which provides in relevant part: “Except those expressly 12 exempted from the Motor Vehicle Code, no person shall drive any motor vehicle . . 13 . upon a highway in this state unless the pers on: (1) holds a valid license issued under 14 the provisions of the Motor Vehicle Code [.]” The jury instruction followed the 15 language of Section 66-5-2(A )(1) and required a finding that Defendant “did not hold 16 a valid driver’s license under the provisi ons of the [M]otor [V]ehicle [C]ode.” See 17 State v. Smith , 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions 186 become the law of the case against whic h the sufficiency of evidence is to be 1 measured.”). 2 {8} Defendant argues that the term “hold” means to be “licensed to drive,” and the 3 State put on no evidence to prove Defendant was not licensed to drive at the time of 4 his arrest, instead only providing officer tes timony that Defendant said he did not have 5 his license with him. Defendant argues that the State should have put on documentary 6 evidence from the MVD to show that Defendant was not li censed to drive. The State 7 responds that the term “hold,” as used in th e jury instruction, means to have in one’s 8 possession, as required by NMSA 1978, Sec tion 66-5-16 (1985) (“Ev ery licensee shall 9 have his driver’s license in his immedi ate possession at all times when operating a 10 motor vehicle and shall display the li cense upon demand of a magistrate, a peace 11 officer or a field deputy or inspector of th e division.”) and therefore, the evidence was 12 sufficient to establish a violation of Section 66-5-2(A)(1). 13 {9} We believe that it is unnecessary to reso lve this question, however. In this case, 14 the evidence at trial was that when Deputy Medina requested a driver’s license from 15 Defendant, he was unable to provide one . The jury was not required to accept 16 Defendant’s explanations to police as to why that was. See State v. Rojo , 17 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“ [T]he jury is free to reject [the 18 d]efendant’s version of the facts.”). In addition, the plain language of Section 66-5- 197 2(C) is clear that “[a] pers on charged with violating the provisions of this section shall 1 not be convicted if the person produces, in court, a driver’s license issued to the 2 person that was valid at the time of the person’s arrest.” There is no evidence that 3 Defendant established this de fense by producing a valid driver’s license in court. We 4 therefore conclude that there was sufficient evidence to establish that Defendant was 5 not licensed to drive in violation of Section 66-5-2(A)(1). 6 {10} Defendant challenges the sufficiency of the evidence to support his conviction 7 for having no proof of insurance on the samebasis. The jury instruction required a 8 finding that “the motor vehicle was not in sured[.]” Defendant contends that the 9 evidence showed only that he did not have proof of insurance with him when he was 10 stopped, not that the vehicle was uninsured. We disagree. Sufficient evidence that the 11 vehicle was not insured was established by Deputy Medina’s testimony that Defendant 12 could not produce proof of insurance for the vehicle when stopped and Agent Vega’s 13 testimony that Defendant admitted that the vehicle was uninsured. Additionally, 14 Section 66-5-205(F) provides that “[a] pers on charged with violating the provisions 15 of this section shall not be convicted if the person produces, in court, evidence of 16 financial responsibility valid at the time of issuance of the citation.” There is no 17 evidence that Defendant established this defense by producing proof of insurance in 18 court. The evidence was sufficient to estab lish that the vehicle was not insured. 198 {11} Defendant next argues that the evidence was insufficient to support his 1 convictions for possession of methamphetamine and posse ssion of drug paraphernalia. 2 Defendant was not in actual possession of the methamphetamine and glass pipe when 3 they were discovered, and the State therefore relied on a theory of constructive 4 possession to convict. See State v. Lopez , 2009-NMCA-044, ¶ 19, 146 N.M. 98, 206 5 P.3d 1003 (stating that possession of illegal drugs can be either actual or constructive); 6 see also State v. Howl , 2016-NMCA-084, ¶ 31, 381 P.3d 684 (“Constructive 7 possession is sufficient to support a conviction.”), cert. denied, 2016-NMCERT-___, 8 ___ P.3d ___ (Sept. 12, 2016). “Constructive po ssession exists when the accused has 9 knowledge of drugs or paraphernalia and exercises control over them.” State v. 10 Phillips , 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d 421. 11 {12} In this case, Defendant did not have ex clusive control over the area in which the 12 contraband was found because there was a passenger who was allowed to remain in 13 the vehicle after Defendant was removed. See Howl , 2016-NMCA-084, ¶ 31 14 (determining that the defendant did not have exclusive control over the area searched 15 where police removed the defendant but allowe d a passenger to remain in the vehicle). 16 “When the accused does not have exclusive control over the premises where the drugs 17 are found, the mere presence of the contraband is not enough to support an inference 18 of constructive possession.” Phillips , 2000-NMCA-028, ¶ 8, Additional 199 circumstances or incriminating statements or conduct on the part of the accused are 1 then necessary to show constructive possession. See id. 2 {13} The State argues, and we agree, that su ch additional circumstances were present 3 in this case. To begin, Defendant owne d the vehicle in which the contraband was 4 contained, and he was the driver. See Lopez , 2009-NMCA-044, ¶ 27 (holding that 5 ownership of a vehicle can provide a link between the ow ner and contraband 6 discovered within); see also Howl , 2016-NMCA-084, ¶ 31 (discussing that the fact 7 of the defendant’s ownership of the vehicle in which c ontraband was discovered could 8 show knowledge and control); see also State v. Morales , 2002-NMCA-052, ¶ 32, 132 9 N.M. 146, 45 P.3d 406 (stating that the fact that the defendant was driving and was 10 in control of the car gave riseto an inference of knowledge), overruled on other 11 grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. Additionally, 12 the contraband was discovered under the driver’s seat within arm’s reach of where 13 Defendant was sitting, and there was evidence that Defendant and the passenger did 14 not have equal access to that area. Cf. State v. Garcia , 2005-NMSC-017, ¶ 21, 138 15 N.M. 1, 116 P.3d 72 (stating that where both the driver and passenger had equal 16 access to the contraband, more than physi cal proximity was needed to establish 17 control). The State also points to Defendant’s conduct at the police station after his 18 arrest to show knowledge. Agent Vega tes tified that Defendant gave an unsolicited 1910 rambling explanation for presence of the contraband, including it being planted by 1 unspecified enemies and the fact that he di d yard work and often put trash in the bed 2 of the truck. We believe that the jury could determine that Defendant’s unsolicited 3 offering of these explanations supported an inference that Defendant knew the 4 methamphetamine was present. See State v. Flores , 2010-NMSC-002, ¶ 23, 147 N.M. 5 542, 226 P.3d 641 (stating that attempting to deceive police can show consciousness 6 of guilt). 7 {14} Defendant points out that the jury was denied the opportunity to evaluate 8 Defendant’s statements because Agent Vega failed to record the interview. However, 9 Agent Vega made written notes of the interview, and the jury was able to assess his 10 credibility as a witness. We believe thata reasonable jury could infer Defendant’s 11 knowledge and control based on this eviden ce, and we therefore affirm Defendant’s 12 convictions for possession. See Morales , 2002-NMCA-052, ¶ 29 (“When a conviction 13 is based on constructive rather than actual possession, this Court must be able to 14 articulate a reasonable analysis that the jury might haveused to determine knowledge 15 and control.”). 16 {15} Finally, Defendant argues that the eviden ce was insufficient to prove that the 17 pipe was paraphernalia . We reject this argument. Th e evidence on this issue was that 18 the glass pipe covered in black burn residue was found ne xt to a baggie of 1911 methamphetamine in Defendant’s vehicl e. Deputy Medina’s unchallenged testimony 1 was that the pipe was of the type typically used to ingest methamphetamine. This 2 evidence is sufficient to allow the jury to in fer that the pipe was used for or intended 3 for use to ingest methamphetamine. SeeNMSA 1978, § 30-31-2(V) (2009) (defining 4 “drug paraphernalia”); State v. Lopez , 2009-NMCA-127, ¶ 34, 147 N.M. 364, 223 5 P.3d 361 (discussing that the evidence was suffici ent to allow the juryto infer that the 6 defendant intended to use a pipe to ingestmethamphetamine where it was found in the 7 center console of the defendant’s vehicl e and contained methamphetamine residue). 8 For these reasons, we reject Defendant’s ch allenges to the sufficiency of the evidence. 9 2. Prosecutorial Misconduct 10 {16} Finally, Defendant argues thathe was denied a fair trial due to inappropriate 11 arguments made by the prosecutor in closi ng. Specifically, Defendant argues that the 12 prosecutor relied on facts that were not inevidence and improperly vouched for police 13 witnesses. As Defendant ac knowledges, he did not object to the prosecutor’s closing 14 argument in district court. See State v. Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 454, 15 993 P.2d 1280 (stating that to preserve an i ssue for appeal, a defendant must make a 16 timely objection that specifically apprises the di strict court of the nature of the claimed 17 error and invokes an intelligent ruling thereon) . He therefore asks that we review this 18 issue as a matter of fundamental error. See Phillips , 2000-NMCA-028, ¶ 32 (stating 1912 that where remarks of the prosecutor are unchallenged they are reversible only where 1 they rise to the level of fundamental error). “Prosecutorial misconduct rises to the 2 level of fundamental error when it is so egregious and had sucha persuasive and 3 prejudicial effect on the jury’s verdict that the defendant was depriv ed of a fair trial.” 4 State v. Trujillo , 2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814 (internal 5 quotation marks and citation omitted). 6 {17} Defendant argues that the prosecutor improperly vouched for the credibility of 7 the law enforcement officers by describing them as “very honest” on seven occasions 8 during closing argument. We disagree, how ever, that the prosecutor’s comments in 9 this case constituted vouching because she di d not invoke the authority of her office 10 or imply that she had special knowledge as a prosecutor. See State v. Paiz , 11 2006-NMCA-144, ¶ 55, 140 N.M. 815, 149 P. 3d 579 (stating that vouching involves 12 either “invoking the authority and prestige of the prosecutor’s office or suggesting the 13 prosecutor’s special knowledge” (internal quotation marks and citation omitted)); cf. 14 State v. Pennington , 1993-NMCA-037, ¶ 27, 115 N.M. 372, 851 P.2d 494 (holding 15 that improper vouching occurred where the prosecutor referred to her ethical 16 obligations and then asserted that a witn ess was not lying). Rather, the prosecutor’s 17 remarks that the officers seemed honest and truthful as witnesses was within the 18 parameters of acceptabl e closing argument. See State v. Dominguez , 1913 2014-NMCA-064, ¶ 23, 327 P.3d 1092 (“Prosecuto rs are permitted to comment on the 1 veracity of witnesses so long as the statements are based on the evidence—not 2 personal opinion—and are not intended to incite the passion of the jury.”). 3 {18} Defendant also argues that the prosecutor referred to facts not in evidence by 4 stating in closing that the methamphetami ne and the pipe were found under the seat 5 “neatly placed side by side” and “very nicely.” Defendant also points to the 6 prosecutor’s statement in closing that the officers kept an eye on the passenger to 7 prevent evidence tampering, wh en the officers in fact tes tified that they watched her 8 for officer safety reasons. Finally, Defendant argues that the prosecutor improperly 9 stated that Defendant did not have a driv er’s license, when the evidence was that he 10 did not have one with him. 11 {19} We see no error in the prosecutor’s st atement that Deputy Medina said that 12 Defendant did not have a license becausethe evidence was that Defendant did not 13 produce a license when stopped. However, weagree with Defendant that the evidence 14 did not support the prosecutor’s statement th at the pipe and the methamphetamine had 15 been “neatly” or “nicely” placed next to each other. There was also no testimony that 16 the officers watched the passenger in this case to prevent evidence tampering. See 17 State v. Ferguson , 1990-NMCA-117, ¶ 11, 111 N.M. 191, 803 P.2d 676 (stating that 18 “[i]t is improper for a prosecutor to refer toor argue on the basis of facts outside the 1914 record”). There was testimony, however, th at the officers are trained to watch 1 individuals left in vehicles to prevent them from hiding things or obtaining weapons. 2 {20} Error occasioned by any of these statements , if any, does not rises to the level 3 of fundamental error. There was evidence that Defendant did not produce a driver’s 4 license, and while Deputy Medina did not us e the words “neatly” or “nicely,” he did 5 testify that the methamphetamine and pipe were “right next to each other” under the 6 driver’s seat. Additionally , there was testimony that police watched the passenger 7 during the time she remained in the vehicle and that they were trained to do so to 8 prevent such individuals from hiding things . We do not believe that any misstatements 9 or mischaracterization by the prosecutor re garding the reasons officers watched the 10 passenger require reversal. See State v. Allen , 2000-NMSC-002, ¶¶ 97-100, 128 N.M. 11 482, 994 P.2d 728 (discussing that a single improper comment in closing is not 12 fundamental error in broader context of closing argument); State v. Boergadine , 2005- 13 NMCA-028, ¶ 31, 137 N.M. 92, 107 P.3d 532 (holding that a few improper comments 14 in the prosecutor’s opening statement, whileintentional and in appropriate, were not 15 sufficiently egregious to rise to the level of fundamental error); see also State v. 16 Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (“The doctrine of 17 fundamental error applies only under excepti onal circumstances and only to prevent 18 a miscarriage of justice.”). 1915 {21} For these reasons, we affirm Defendant’s convictions. 1 {22} IT IS SO ORDERED. 2 3 JULIE J. VARGAS, Judge 4 WE CONCUR: 5

6 LINDA M. VANZI, Chief Judge 7

8 STEPHEN G. FRENCH, Judge 9