This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om 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. 32,811 4 BILLY MACKEY, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Lisa B. Riley, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 B. Douglas Wood III, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 GARCIA, Judge. 172 {1} Defendant appeals from his convictions for one coun t of trafficking a controlled 1 substance by possession with intent to di stribute and one count of tampering with 2 evidence. [DS 4; MIO 1; RP 105, 107] This Court issued a calendar notice proposing 3

to affirm. Defendant filed a memorandum in opposition, which this Court has duly 4 considered. We remain unpersuaded by Defendant’s arguments and therefore affirm. 5
In his docketing statement, Defendant argued that t here was insufficient 6 evidence to prove that the substance found by t he drug task force could be directly 7 connected to him. [DS 4] Although it seemed like Defendant was only appealing his 8 conviction for trafficking crack cocaine, this Cour t ’s calendar notice addressed all 9 three of Defendant’s convictions: (1) trafficking a controlled substance by possession 10 with intent to distribute; (2) tampering with evidence; and (3) possession of marijuana 11 or synthetic cannabinoids. We proposed to affirm all of Defendant’s convictions. 12 In his memorandum in opposition, Defendant has clarified that he is appealing 13 the first two convictions, but he is not appealing his conviction for possession of 14 marijuana or synthetic cannabinoids. [MIO 1; RP 106] 15 Trafficking a Controlled Substance by Possession with Intent to Distribute 16 Defendant continues to argue that there was insufficient evidence to support his 17 conviction for traffi cking crack cocaine by possession w ith intent to distribute because 18 the State failed to prove that “(1) he possessed t he cocaine at issue and that (2) he 193 intended to transfer the cocaine to another person.” [MIO 8] As we explained in detail 1 in our calendar notice, there was suff icient evidence to support the jury’s 2 determination that Defendant was in possession of crack cocaine [CN 3-6], he knew 3 the substance was crack cocaine or he belie ved it to be crack cocaine [CN 6-7], and 4 he intended to transfer it to a nother on June 24, 2011. [CN 6-7] 5 Defendant does not raise a ny new legal arguments or facts in response to our 6 notice. See State v. Ibarra , 1993-NMCA-040, ¶ 11, 116 N.M. 486, 864 P.2d 302 (“A 7 party opposing summary disposition is required to come forward and specifically 8 point out errors in fact and/or law.”). In stead, Defendant asserts that a rational juror 9 could not have found each element of trafficking beyond a reasonable doubt. [MIO 10 6] 11 It is “an appellate court’ s duty on review of a crimin al conviction to determine 12 whether any rational jury could have found each element of the crime to be 13 established beyond a reasonable doubt.” State v. Garcia , 1992-NMSC-048, ¶ 27, 114 14 N.M. 269, 837 P.2d 862. The application of th is standard, however, “does not involve 15 substituting the appellate court’s judgment for that of the jury in deciding the 16 reasonable-doubt question[.]” Id. ¶ 27. Similarly, this standard does not require that 17 we consider the “merit of ev idence that may have supported a verdict to the contrary.” 18 State v. Vigil , 1990-NMSC-066, ¶ 6, 110 N.M. 254, 794 P.2d 728. 194 Defendant asserts that, even though Agent Leos testified that he saw Defendant 1 “make a motion with what appeared to be an object inside the kitchen area[,]” Agent 2
Leos was outside the residence when he made that observation and he could not testify 3

to what the object was or wh ether Defendant was moving an object at all. [MIO 8] 4 Additionally, Defendant claims that the packages of crack cocaine found in the trash 5

can were large enough that Agent Leos s hould have been able to see them if 6 Defendant was actually handling them when Agent Leos observed him. [MIO 8; DS 7 5] 8 For the reasons discussed in our calenda r notice, we conclude that there was 9 sufficient evidence to support the jury’s de termination that De fendant possessed the 10 crack cocaine at issue. See State v. Sutphin , 1988-NMSC-031, ¶ 23, 107 N.M. 126, 11 753 P.2d 1314 (“A reviewing c ourt may neither reweigh the evidence nor substitute 12 its judgment for that of the jury.”); see also State v. Anaya , 1982-NMSC-073, ¶ 4, 98 13 N.M. 211, 647 P.2d 413 (“[W]here a jury verdict in a criminal case is supported by 14 substantial evidence, the verdict w ill not be disturbed on appeal.”). 15 Defendant also asserts that, even if th e State proved that he possessed cocaine, 16 the State failed to establish that he inte nded to transfer it. [MIO 9-10] Defendant 17 claims that his mere presence in the re sidence, his possession of “a bundle of cash” 18 that he gave to another o ccupant in the house, second-ha nd reports that he was selling 195 drugs from the house, and his request that officers not search the house without a 1 warrant, were not sufficient to prove that he intended to transfer cocaine to another. 2 [MIO 3, 9-10] 3 In addition to this evidence, the record reflects that officers had been observing 4 the house after receiving complaints of crack cocaine trafficking from that residence, 5 Agent Leos had purchased crack cocaine fro m Defendant from that house in the past, 6 and upon officers’ arrival on June 24, 2011, the officers observed a female drive up 7 to the house, go inside the house, and within one minute, return to her vehicle and 8 leave. [DS 2, 3-4; RP 16, 18] Agent Whitzel attempted to speak to the female, but she 9 avoided him and sped off. [DS 2; RP 16] S hortly thereafter, Agent Leos went to the 10 front porch and spoke to De fendant, who appeared to be very nervous and started 11 trembling. [DS 2-3; RP 16] At that time, Defendant pulled out a large amount of 12 money from his pocket a nd handed it to another male in the house. [MIO 3; DS 2-3; 13 RP 16] 14 We conclude that there was suffi cient evidence to support the jury’s 15 determination that Defenda nt intended to transfer crack cocaine to another. 16 Accordingly, we affirm his convi ction for trafficking a controlled substance by 17 possession with intent to distribute. 186 Tampering with Evidence 1 Defendant argues that there was insuffici ent evidence to prove that he tampered 2 with evidence. [MIO 10-12] Defendant continues to argue that, because Agent Leos 3 could not testify to the nature of th e object Defendant was moving, there was 4 insufficient evidence to show that Defenda nt had moved the cocaine that was later 5 found in the trash can. [MIO 11] Defendant further argues that even if he had placed 6 the packages of cocaine in the trash can, there was insuffi cient evidence to prove that 7 Defendant did so to evade apprehension, prosecution, or conviction. [MIO 11] 8 The district court instruct ed the jury that in order to find Defendant guilty of 9 tampering with evidence, the State had to prove beyond a reasonable doubt that 10 Defendant “hid or placed cocaine” with the intent to prevent his “apprehension, 11 prosecution, or conviction” and this happe ned in New Mexico on or about June 24, 12 2011. [RP 90] We conclude that the Stat e presented substantial evidence supporting 13 all elements of the crime. 14 Agent Leos testified that, on July 24, 2011, he observed Defendant standing at 15 the front doorway of the house, turn around, and walk back inside the house into the 16 kitchen area. [MIO 2-3; DS 2] Agent Le os continued to observe Defendant, who 17 remained within Agent Leos’ view, and Ag ent Leos saw Defendant make “a furtive 18 movement as if in an attempt to conceal an object.” [MIO 3; DS 2] Agent Leos 197 testified that Defendant “ben t down and appeared to place something off to the right, 1 at a downward angle.” [MIO 3; DS 2] 2 Agent Leos went to the front porch, id entified himself, and informed Defendant 3 that he had received complaints of crack cocaine trafficking. [MIO 3; DS 2] While 4 talking to Agent Leos, Defe ndant retrieved a “bundle of cash” from his front pocket 5 and gave it to a man sitting on a couch in the house. [MIO 3; DS 2-3] Agent Leos 6 asked Defendant to surrender all crack cocaine in his possession, but Defendant 7 denied having any crack cocaine. [MIO 3; DS 3] 8 After Agent Leos obtained a search wa rrant for the house, he searched the 9 kitchen area. [MIO 4; DS 3] Agent Leos observed a trash can in the area, which 10 contained a paper sack and a twelve-pack with several beer bottles. [DS 3; RP 17] 11 Underneath those items, there were two ba ggies containing white rock and powder12 like substance, which were la ter tested and confirmed to be crack cocaine. [MIO 4; DS 13 3] Although Defendant claimed the cocaine wa s not his, he admitte d that he knew the 14 cocaine was in the house. [MIO 4; DS 3] 15 We conclude this evidence satisfies each of the aforementioned elements of 16 tampering with evidence. See State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 17 974 P.2d 661 (providing that substantial evid ence is “such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion” (citation omitted)). 198 The jury could reasonably infer that Defe ndant saw Agent Leos, Defendant knew the 1 cocaine was in the house, and Defendant did not want Agent Leos to find the cocaine, 2 so he hid the cocaine in the trash can underneath other objects. 3 This case is similar to State v. Delgado , 2009-NMCA-061, 146 N.M. 402, 210 4 P.3d 828, overruled on other grounds by State v. Aragon , 2010-NMSC-008, ¶ 19, 147 5
N.M. 474, 225 P.3d 1280. In Delgado , two pol ice officers observed the defendant 6 bending down behind a wooden fence. 2009-NMCA-061, ¶ 2. One of the officers 7 called out to the defendant, the defendant stood up, looked at the officers, and quickly 8 walked away toward a nearby storage shed. Id. The officer lost sight of the defendant 9 briefly. Id. Then, the defendant turned around and started walking back toward the 10 officers. Id. The officer questioned the defendant about what he had thrown because, 11 “based on his body movements, she believed that he had disposed of something.” Id. 12 ¶ 3. A third officer arrived on scene and found a white baggi e containing a white 13 powdery substance in front of the shed. Id. The substance tested positive for cocaine. 14 Id. ¶¶ 3-5

. After the baggie was located, the defendant put his hands behind his back 15 and turned around. Id. ¶ 3. This Court concluded that these facts constituted sufficient 16 evidence to support the defendant’s tampering conviction because the evidence was 17 found and officers testified about the defendant’s actions linking him to disposing the 18 evidence. Id. ¶¶ 24-25. 199 In the present case, we are not pers uaded by Defendant’s argument that even 1 if he placed the cocaine pack ages in the trash can, there was insufficient evidence that 2 he did so to evade apprehension, prosecu tion, or conviction. [MIO 11] It was 3 reasonable for the jury to infer that De fendant hid the cocaine to prevent his 4 apprehension, prosecution, or conviction. See State v. Silva , 2008-NMSC-051, ¶ 18, 5 144 N.M. 815, 192 P.3d 1192 (explaining that intent to prevent apprehension, 6 prosecution or conviction is “often inferre d from an overt act of the defendant”). 7 Therefore, we conclude that ther e was sufficient evidence to support 8 Defendant’s conviction for tampering with evidence. 9 Conclusion 10
For the reasons stated above and in this Court’s notice of proposed disposition, 11 we affirm. 12 IT IS SO ORDERED. 13

14 TIMOTHY L. GARCIA, Judge 1510 WE CONCUR: 1

2 JAMES J. WECHSLER, Judge 3

4 M. MONICA ZAMORA, Judge 5