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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,420 4 KEVIN BROWN , 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY 7 John M. Paternoster, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13

Alex Chisholm 14 Albuquerque, NM 15 for Appellant 16

MEMORANDUM OPINION 172 HANISEE, Judge. 1 {1} Defendant was found guilty by a jury of trafficking heroin and conspiracy to 2 traffic heroin—charges that arose from an incident in which Defendant was alleged 3 to have passed an e nvelope containing heroin to another inmate while Defendant was 4 in the penitentiary. On appeal, Defendantchallenges the sufficiency of the evidence 5 to support the trafficking charge, arguing th at the evidence did not support the jury’s 6 finding that Defendant knew the envelope containe d heroin beyond a reasonable 7 doubt. We hold that sufficient evidence s upports Defendant’s c onviction and affirm. 8 DISCUSSION 9 A. Standard of Review 10 {2} The parties dispute the applicable standard of review. Defe ndant contends that 11 because he preserved an objection to the jury instruction for trafficking heroin, we 12 should review for reversible error, and he also assert s that we should apply the 13 sufficiency of the evidence st andard. We agree with the State that Defendant does not 14 raise an argument on appeal about the adequ acy of the jury instruction, but rather 15 challenges the sufficiency of the evidence. Defendant further argues that when we 16 review for substantial evidence, there is a limitation on the extent to which we may 17 rely on inferences drawn from circumstantial evidence to prove anessential element 18 of the crime. Defendant relies on State v. Quintanain support of his contention that 193 where circumstantial evidence is used to prove an elemen t, “such evidence must point 1 unerringly to the defendant’s guilt, and mu st be incapable of explanation by any 2 reasonable hypothesis of the defendant’s innocence.” 87 N.M. 414, 422, 534 P.2d 3 1126, 1134 (Ct. App. 1975) (Sutin, J., dissenting) (citing State v. Malouff , 81 N.M. 4 619, 620, 471 P.2d 189, 190 (Ct. App. 1970). As the Supreme Court later explained, 5 however, “ ‘incompatible withany rational theory of . . . innocence’ means ‘the 6 evidence supporting the verdict [must] provi de a sufficient basis upon which to infer 7 guilt beyond a reasonable doubt.’ ” State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 8 756, 760 (1994) (quoting State v. Vigil , 110 N.M. 254, 256, 794 P.2d 728, 730 (1990) 9 (alterations in original)). What Defendant purports to be a limitation on our review 10 of the sufficiency of circumstantial eviden ce is not so; it “is really nothing more than 11 an application of the substantial evidence rule.” Vigil , 110 N.M. at 256, 794 P.2d at 12 730 (internal quotation mark s and citation omitted); see State v. Chandler , 119 N.M. 13 727, 732, 895 P.2d 249, 254 (Ct. App. 1995) (rejecting the separateness of a 14 circumstantial evidence rule and explaining that having ev aluated the circumstantial 15 evidence, “the jury, by its verdict, has necessarily found the hypothesis of guilt more 16 reasonable than any of the theories of innocence advanced by the defendant. Thus, 17 we evaluate whether substantial evid ence supports the verdict of guilt beyond a 18 reasonable doubt.” (citation omitted)), holding modified on other grounds by State v. 194 Vargas , 2007-NMCA-006, ¶ 14, 140 N.M. 864, 149 P. 3d 961. Accordingly, we apply 1 our usual standard of review fo r the sufficiency of the evidence. 2 {3} “The test for sufficiency of the evidence is whether substantial evidence of 3 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 4 reasonable doubt with respectto every element essential to a conviction.” State v. 5 Riley , 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks 6 and citation omitted). The re viewing court “view[s] the evidence in the light most 7 favorable to the guilty verdict, indulging all reasonable inferences, and resolving all 8 conflicts in the evidence infavor of the verdict.” State v. Cunningham , 9 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The question before us as a 10 reviewing [c]ourt is not whether we w ould have had a reasonable doubt [about guilt] 11 but whether it would have been impermissibly unreasonable for a jury to have 12 concluded otherwise.” See State v. Rudolfo , 2008-NMSC-036, ¶ 29, 144 N.M. 305, 13 187 P.3d 170. Conversely stated, we ask whether “any rational trier of fact could have 14 found the essential elements of the crime beyond a reasonable doubt.” Cunningham , 15 2000-NMSC-009, ¶ 26 (emphasis, internal quotation marks, and citation omitted). 16 B. Analysis 17 {4} In order to prove that Defendant trafficked heroin, the State had to establish the 18 following beyond a reasonable doubt: 195 1. [D]efendant transferred [h]eroin to another; 1 2. [D]efendant knew it was [h]eroin or be lieved it to be [h]eroin or believed 2 it to be some drug or other substance the possession of which is 3 regulated or prohibited by law; 4 3. This happened in New Mexico on or about the 15th day of December[] 5 2008. 6 {5} The evidence the State pres ented to establish Defendant’s knowledge under the 7 second element was circumstantial, as is often the case “[b]ecause an individual’s 8 intent is seldom subject to proof by direct evidence[.]” State v. Nozie , 9 2009-NMSC-018, ¶ 32, 146 N.M. 142, 207 P.3d 1119 (alteration in original) (internal 10 quotation marks and citation omitted). In this regard, the State presented the 11 testimony of Sergeant Thomas from the penite ntiary, who was in charge of monitoring 12 the housing and movement of inmates on December 15, 2008, at the time of the 13 incident. 14 {6} Sergeant Thomas explained the layout of the housing unit in which the incident 15 occurred, stating that there were five large contiguous cells called pods, lettered A 16 through E, that housed between fifty-six tosixty inmates a piece. Each pod was two17 storied and separated from th e next pod by large walls thathave an emergency door. 18 The pods were arranged in an arc circling th e control picket, which sat at the center 196 of the housing unit and was occupied by officers who watched the inmates and 1 contained a computer that controlled the housing unit. The control picket was an 2 enclosed room that had walls made of c oncrete from the floor to waist-high and the 3 rest was made of glass on all sides. The control picket also had a continuous feed 4 running from the surveillance cameras placed in each pod. Sergeant Thomas further 5 explained that inmates are not permitte d to be around the emergency doors between 6 pods, that they will be written up for being inthe unauthorized area, and that there is 7 a red box painted on the floor to indicate the prohibited area. 8 {7} Sergeant Thomas testified th at he happened to be in the control picket at around 9 8:10 a.m. on December 15, 2008, when he saw on the camera feed that Defendant was 10 in the D pod standing at the emergency doorin the prohibited area on the bottom tier 11 separating the D and C pods. Sergeant Thom as had the attending officer display the 12 camera feed from the C pod, and was then able to view another individual standing 13 at the other side of the emergency door. Sergeant Thomas testified that it appeared 14 the inmates were conversing through the steel emergency door because their faces 15 were at the crack of the steel door talking into it, and they were turning their heads as 16 if to listen to one another. Sergeant Thomas then watc hed Defendant bend over at the 17 door and make a hand motion that looked as though he was sliding something under 18 the door. Sergeant Thomas stated that th e other inmate, who helater identified as 197 Larry Woolridge, bent down to pick up what Defendant slid through. Upon viewing 1 this, Sergeant Thomas immediately went into the C pod, which required him to turn 2 his back on his view of the pod for a fe w seconds. The package was handed off to 3 another inmate, and when Sergeant Thomas entered the C pod it was in the hands of 4 Wes Allen, who handed it to Damien Hambleton when the sergeant hollered at Allen. 5 Sergeant Thomas then hollered at Hambleton, who walked around a table, dropped the 6 package on a chair, and walked toward th e sergeant. Another inmate was sitting on 7 the chair and leaned back to conceal the package. Sergeant Thomas retrieved the 8 package, which he described as paper fo lded into a kind of make-shift envelope 9 containing eight small pieces of heroin (“ BBs”) wrapped in cellophane with the word 10 “giant” written on the outside of the paper package. Serg eant Thomas also explained 11 that this relay between Defendant and the other inmates took place during a 12 predictably busy time period in the penite ntiary’s housing unit, when inmates were 13 coming to the doors and leaving their pods to attend scheduled meetings, jobs, and 14 activities. 15 {8} The State introduced three photographs and two short video clips that were 16 played for the jury and explained by Lieute nant Carrell, who was the lead supervising 17 officer of the housing unit at the time of the incident. One video was recorded in the 18 D pod where Defendant is shown standing at the emergency door, talking and 198 listening through it, bending down, walking away , and then returning to the door. The 1 other video was recorded in the C pod wh ere Woolridge is seen standing at the 2 emergency door for several seconds and th en bending down, and thereafter is joined 3 by Allen, and they both walk away from the door. The three photographs contained 4 in State’s Exhibit 2 are stills from the vide otape feed showing (1) Defendant walking 5 in the middle of the D pod, (2) Defendant at the emergency door separating the D and 6 C pods, and (3) Woolridge and Allen on the other side of the emergency door 7 separating the C and D pods. This eviden ce was consistent with Sergeant Thomas’s 8 testimony of what he observed. 9 {9} The State also presented the testimony of Dwayne Austin, the chief of security 10 at the penitentiary. He tes tified that when he questioned Defendant about the incident, 11 Defendant told Austin that an inmate from the E pod, who Defendant did not know, 12 gave him two small pieces of paper under the emergency door and Defendant walked 13 over to the C pod and slid them under that emergency door. Austin testified that it 14 was unlikely that Defendant would just happen to hear someone at the emergency 15 door to the E pod because you can only hearthrough the emergency doors if your ear 16 is to the crack of the door and because it was a predictably busy time with high traffic 17 and movement among the inmates. Rather, Austin believed thatDefendant had been 18 communicated with through hand signals from another pod or that he previously 199 interacted with other inmates during some scheduled activity. Austin also explained 1 that inmates would want to know who they are dealing with and coordinate efforts 2 when transacting in drugs, given the harsh potential punishments involved and the 3 possibility that another inmate might steal the drugs. 4 {10} The defense presented the testimony of Mr. Hambleton and Defendant, who 5 offered an alternative explanation for the inmates’ actions. Hambleton testified that 6 he did not know Defendant befo re Defendant was charged w ith crimes related to the 7 drugs, that Defendant had nothing to do w ith the drugs, that the drugs belonged to 8 Hambleton, and that the package was in his possession in his pocket since the day 9 before Defendant was charge d with possession and conspir acy. Defendant testified 10 that he does not take drugs and does not dealdrugs in prison. Defendant stated that 11 he grew up with Woolridge and explained that he was talking to Woolridge through 12 the emergency door about buying a pizza for him and his girlfriend and slid a note 13 under the door asking Woolridge to call De fendant’s girlfriend and to order them 14 pizza with Defendant’s money, because Woolridge had privileges that would permit 15 ordering pizza and Defendant did not. 16 {11} On appeal, Defendant contends that b ecause he offered a reasonable hypothesis 17 to explain his actions and because there was no evidence to suggest that Defendant 18 knew about the drugs, the State’s circumstan tial evidence did not rise to the level of 1910 substantial evidence as a matter of law. We disagree with Defendant’s 1 characterization of the State’s evidence and his characterization of the jury’s role. 2 There was plenty of eviden ce from which the jury could infer that Defendant had 3 knowledge of the drugs, including the furtiven ess of his movements, the coordination 4 of the inmates’ actions, the time of day that was chosen to pass the drugs, the 5 desirability of coordinating efforts withknown people to avoi d getting caught with 6 drugs or losing the drugs, and the inconsiste ncy in Defendant’s explanations for what 7 had occurred. It is incorrect to state that the jury must accept any reasonable 8 explanation offered through direct eviden ce by the defense where the State’s case is 9 circumstantial. Rather, the jury as fact finder is required to weigh the evidence and 10 determine the credibility of the witnesses; therefore, it is free to reject Defendant’s 11 version of events, even a ssuming it is a reasonable, alternative explanation. State v. 12 Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829; State v. Salas , 1999- 13 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. We also observe that “[a]n appellate 14 court does not evaluate the evidence to determine whether some hypothesis could be 15 designed which is consistent with a finding of innocence.” State v. Reyes , 16 2002-NMSC-024, ¶ 43, 132 N.M. 576, 52 P. 3d 948 (internal quotation marks and 17 citation omitted), abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, 18 ¶ 36, 267 P.3d 806. Again, “[t]he only test recognized by this court to review the 1911 sufficiency of the evidence from a jury trial is one inquiring whether substantial 1 evidence, either direct or circumstantial innature, exists to support a verdict of guilty 2 beyond a reasonable doubt with respect to each essential element of a crime charged.” 3 State v. Duran , 107 N.M. 603, 605, 762 P.2d 890, 892 (1988), superseded by statute 4 on other grounds as stated inState v. Triggs , 2012-NMCA-068, 281 P.3d 1256. 5 CONCLUSION 6 {12} Viewed in the light most favorable to the State, we hold that the evidence was 7 sufficient such that a rational jury could have found the essential elements of 8 trafficking heroin. See Cunningham , 2000-NMSC-009, ¶ 26. Specifically, the record 9 shows that the State presented enough circum stantial evidence to support an inference 10 of knowledge. As a result, we affirm Defendant’s conviction. 11 {13} IT IS SO ORDERED. 12

___________________________ ______ 13 J. MILES HANISEE, Judge 14

WE CONCUR: 15

_________________________________ 16 LINDA M. VANZI, Judge 1712 _________________________________ 1 M. MONICA ZAMORA, Judge 2