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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: July 10, 2013

Docket No. 30,917

STATE OF NEW MEXICO,

Plaintiff-Appellee, 

v.

DONNIE SILVAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY

Daniel Viramontes, District Judge

Gary K. King, Attorney General

Ann M. Harvey, Assistant Attorney General

Santa Fe, NM

for Appellee 

Bennett J. Baur, Acting Chief Public Defender

B. Douglas Wood III, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

OPINION

ZAMORA, Judge.

{1} Defendant appeals his convictions for trafficking by possession with intent to

distribute methamphetamine and for conspiracy to commit trafficking, the result of a

surveillance of his residence during a drug investigation in Lordsburg, New Mexico.

Defendant argues that evidence should have been suppressed because it was seized through

a pretextual stop of a car in which his co-conspirator was a passenger, and through a

warrantless search of his motel room. He also appeals the denial of a motion for a new trial

and asserts that his conspiracy conviction should be reversed. We affirm in part and reverse
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in part.

BACKGROUND

{2} We briefly set out the facts of the case and a time line of events to assist in our

analysis below. On March 14, 2008, as part of a narcotics task force operation in Hidalgo

County, New Mexico, local officers and agents were monitoring suspected drug activity at

the American Motor Inn in Lordsburg. Suspecting a drug deal had taken place in the hotel

room of Defendant, and under operational orders to stop every car emerging from the hotel,

authorities followed Patricia Ortega as she left the hotel parking lot as a passenger in a white

car. Lordsburg Police Sergeant Plowman, assisting in the investigation, looked for probable

cause to pull the car over, eventually making a traffic stop for failure to use a turn signal.

Ortega and her daughter, also a passenger, got out of the car and went to her motel room at

the nearby Budget Motel. The driver of the car was issued a warning, and no evidence was

seized from his car. However, Sergeant Plowman remained in contact with Ortega as

authorities sought to obtain a search warrant for her motel room. Before the search warrant

was obtained, Ortega emerged from her room with 1.7 grams of methamphetamine and told

police that she had bought it earlier in the day from Defendant in his room at the American

Motor Inn.

{3} Later that day, again while waiting for a warrant but before one was issued, law

enforcement agents forced their way into Defendant’s hotel room while he was gone. No

evidence was seized during the search of the hotel room. Defendant was arrested three days

later and charged with trafficking a controlled substance and with conspiracy in connection

with the March 14 sale of narcotics to Ortega.

{4} After a two-day jury trial, Defendant was convicted on both counts. He brought this

appeal.

DISCUSSION

{5} Defendant raises four issues on appeal: (1) he contends that a pretextual stop of the

car in which Ortega was a passenger produced evidence that should have been suppressed;

(2) he argues for another order of suppression because of a warrantless search of his hotel

room; (3) he challenges the district court’s denial of a motion for a new trial based on the

State’s failure to disclose an audio recording of Defendant’s post-arrest interview with

police; and (4) he contends that Wharton’s Rule bars a conspiracy conviction under this set

of circumstances. We address each issue in order.

I. Pretextual Stop

{6} Defendant first argues that the traffic stop of the car in which Ortega was a passenger

was pretextual and that any evidence recovered in connection with that traffic stop should

be suppressed. See N.M. Const. art. II, § 10 (“The people shall be secure in their persons,
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papers, homes[,] and effects, from unreasonable searches and seizures, and no warrant to

search any place, or seize any person or thing, shall issue without . . . a written showing of

probable cause[.]”); State v. Ochoa, 2009-NMCA-002, ¶ 25, 146 N.M. 32, 206 P.3d 143

(defining a pretextual stop as “a detention supportable by reasonable suspicion or probable

cause to believe that a traffic offense has occurred, but [also] is executed as a pretense to

pursue a ‘hunch,’ a different more serious investigative agenda for which there is no

reasonable suspicion or probable cause”). Defendant contends that Sergeant Plowman was

under orders to assist in the investigation of Defendant’s alleged drug operation by stopping

the drivers of cars seen coming out of the American Motor Inn parking lot and committing

a traffic violation. The State counters by challenging Defendant’s standing to contest the

constitutionality of a traffic stop at which he was not present. The State also asserts that

even if Defendant was able to establish standing, evidence supports the district court’s

finding that the traffic stop was constitutionally sound.

{7} Defendant filed a motion to suppress all physical evidence and statements obtained

as a result of the pretextual stop, citing both the New Mexico Constitution and the Fourth

Amendment of the United States Constitution. The district court denied the motion to

suppress, concluding that the stop was not pretextual. 

A. Standard of Review

{8} “A district court’s denial of a motion to suppress will not be reversed if it is

supported by substantial evidence, the only exception being if the ruling was incorrectly

applied to the facts.” State v. Van Dang, 2005-NMSC-033, ¶ 6, 138 N.M. 408, 120 P.3d

830. The district court’s findings of fact are reviewed for substantial evidence, and the

court’s application of the law to those facts is reviewed de novo. State v. Soto,

2001-NMCA-098, ¶ 6, 131 N.M. 299, 35 P.3d 304.

B. Standing

{9} We first address the threshold issue raised by the State: whether Defendant has

standing to ask the court to suppress evidence related to a pretextual stop of a car in which

he was not riding and did not have a possessory interest. “Standing is . . . a substantive

doctrine that identifies those who may assert rights against unlawful searches and seizures.”

State v. Porras-Fuerte, 119 N.M. 180, 183, 889 P.2d 215, 218 (Ct. App. 1994). Whether a

party has standing to bring forth a claim is a question of law that we review de novo.

Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶ 6, 279 P.3d 772.

{10} We have previously stated that “standing is a fact-based issue on which [a d]efendant

must be given the opportunity to present evidence to the [district] court.” State v. Leyba,

1997-NMCA-023, ¶ 6, 123 N.M. 159, 935 P.2d 1171. At the district court’s first hearing on

Defendant’s motion to suppress evidence, the State asserted that Defendant lacked standing

to contest the seizure of evidence from Ortega after the stop of the car in which she had been

a passenger. The district court found that Defendant had standing to contest the pretextual
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stop because there was a “nexus” between the stop of the car in which Ortega was a

passenger and the arrest of Defendant.

{11} In order to establish standing, a defendant “must demonstrate that he had a subjective

expectation of privacy that society will recognize as reasonable.” Van Dang,

2005-NMSC-033, ¶ 7. “Generally, one who owns, controls, or lawfully possesses property

has a legitimate expectation of privacy.” Id. (“[H]olding that where occupants of a car

asserted neither a property nor a possessory interest in the automobile, nor an interest in the

property seized, they were not entitled to suppression of seized items in their subsequent

robbery prosecution.”) (citing Rakas v. Illinois, 439 U.S. 128, 148 (1978). Generally,

defendants, when asserting their constitutional rights against searches and seizures, cannot

do so vicariously through others. State v. Munoz, 111 N.M. 118, 119, 802 P.2d 23, 24 (Ct.

App. 1990) (“An individual aggrieved by an illegal search only through the introduction of

evidence secured by a search of a third person’s premises or property has not suffered an

infringement of his [F]ourth [A]mendment rights.”); United States v. Padilla, 508 U.S. 77,

81 (1993) (per curiam) (“It has long been the rule that a defendant can urge the suppression

of evidence obtained in violation of the Fourth Amendment only if that defendant

demonstrates that his Fourth Amendment rights were violated by the challenged search or

seizure.”); Rakas, 439 U.S. at 134 (“A person who is aggrieved by an illegal search and

seizure only through the introduction of damaging evidence secured by a search of a third

person’s premises or property has not had any of his Fourth Amendment rights infringed.”).

In Van Dang, our Supreme Court held that even the driver of a rental car did not have

standing to challenge a search of the car when that person was neither the one who rented

the car nor listed as an authorized driver. 2005-NMSC-033, ¶ 10, n.1.

{12} We have previously stated that a passenger in a car cannot assert the Fourth

Amendment rights of the driver of the car to be free from unreasonable searches and

seizures. State v. Chapman, 1999-NMCA-106, ¶ 26, 127 N.M. 721, 986 P.2d 1122 (“Even

if the driver could raise an invasion of her own Fourth Amendment rights because of a

possessory interest in the car, an issue that we do not address or decide, that right may not

be vicariously asserted by [the d]efendant.”). In Chapman, this Court referenced Alderman

v. United States, 394 U.S. 165, 174 (1969) (plurality opinion) as recognition for the principle

that “Fourth Amendment rights are personal rights which . . . may not be vicariously

asserted.” 1990-NMCA-106, ¶ 26. The Chapman Court refused to review the merits of that

defendant’s argument. Id.

{13} Defendant urges us to analyze the issue of standing to contest a pretextual stop under

the New Mexico Constitution. He argues that Article II, Section 10 of the New Mexico

Constitution provides broader protections than does the Fourth Amendment of the United

States Constitution, therefore, it provides a broader basis for us to find he has standing. We

note that our Supreme Court has made reference to the fact that the Court has not yet

analyzed the subject of pretextual stops under our state Constitution. State v. Gonzales,

2011-NMSC-012, ¶ 19, 150 N.M. 74, 257 P.3d 894 (Bosson, J., concurring). Our Supreme

Court was recently faced with the argument that “an arrest was unconstitutional because the
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stop was pretextual at its inception and therefore unconstitutional under Article II, Section

10 of the New Mexico Constitution citing . . . Ochoa[.]” Schuster v. N.M. Dept. of Taxation

and Revenue, 2012-NMSC-025, ¶ 32, 283 P.3d 288. The Court did not address the

constitutional argument but instead applied the Ochoa test. We decline to undertake such

an analysis here.

{14} In the case before us, Defendant was not a passenger in the car that was stopped; in

fact, he was not present at the scene and played no role in the supposed pretextual stop and

subsequent seizure of evidence from Ortega, who had already left the scene of the traffic

stop. Defendant had no possessory interest in the car. Even the evidence seized from Ortega

had a tenuous connection to the stop of the car. Ortega had returned to her own motel room.

She voluntarily emerged with the methamphetamine, which she voluntarily handed over to

the police without the need to conduct a search. She also voluntarily provided unsolicited

details about the purchase of the drugs. See State v. Soto, 2008-NMCA-032, ¶ 25, 143 N.M.

631, 179 P.3d 1239 (“Where the acquisition of evidence is sufficiently removed from the

unlawful police conduct, the deterrent value of excluding it is diminished.” (internal

quotation marks and citation omitted)).

{15} At the suppression hearing, the district court ruled that Defendant had standing and

that the stop of the car Ortega was riding in was not pretextual. We will affirm a ruling of

a district court if it is right for any reason. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20,

128 N.M. 536, 994 P.2d 1154 (“This Court may affirm a district court ruling on a ground not

relied upon by the district court, [but] will not do so if reliance on the new ground would be

unfair to appellant.” (alteration in original) (internal quotation marks and citation omitted)).

{16} Defendant’s challenge to the pretextual stop of the car amounts to a vicarious

assertion of the Fourth Amendment rights of others and his motion challenges the stop to the

extent that it led to the seizure of evidence. Consistent with Chapman, we conclude that

Defendant does not have standing to argue a motion to suppress evidence that may have

resulted from the pretextual stop of a car in which he neither was a driver, a passenger, nor

did he have a possessory interest in the car. 1999-NMCA-106, ¶ 26. Therefore, it was not

error for the district court to deny the motion to suppress evidence that may have resulted

from the pretextual stop alleged by Defendant.

II. Warrantless Search

{17} Defendant next argues that a warrantless search of his hotel room was improper and

that the district court should have granted his motion to suppress evidence. He

acknowledges that no evidence was obtained from the hotel room but he contends that the

infringement on his constitutional right to be free from unreasonable searches and seizures

was “so egregious” that “some form of remedy” should be crafted, such as “the suppression

of all evidence obtained through the entire unconstitutional investigation in this matter.” We

employ the same standard of review articulated above to analyze this second suppression

issue.
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{18} The district court took note of the State’s argument that the pretrial motion to

suppress was the subject of eight hours of hearings, and Defendant failed to raise the issue

of the hotel room search during that time. The court then observed that the motion to

suppress late in the proceedings appeared to be moot, stating that it:

has to consider that the defense is asking for suppression of physical

evidence. There was no physical evidence obtained in that particular search.

The physical evidence had been obtained prior to that. That has been

discussed and argued substantially prior to the beginning of trial today.

The [c]ourt finds that the motion to suppress filed at this late date . .

. still would not produce anything such that it would justify a granting of that

motion; therefore, the [c]ourt will deny the motion to suppress. 

{19} A reviewing court will not find reversible error unless that error results in prejudice

to the defendant. Kysar v. BP Am. Prod. Co., 2012-NMCA-036, ¶ 21, 273 P.3d 867

(“[E]ven if a district court makes an erroneous evidentiary ruling, it does not constitute

reversible error unless it results in prejudice.”); Rule 11-103(A) NMRA (“A party may claim

error in a ruling to admit or exclude evidence only if the error affects a substantial right of

the party[.]”); City of Albuquerque v. Ackerman, 82 N.M. 360, 365, 482 P.2d 63, 68 (1971)

(“Harmless error in the exclusion of evidence cannot be the basis for a new trial.”). Courts

in other jurisdictions have held that a motion to suppress evidence is moot when there is no

evidence seized. United States v. Stearn, 597 F.3d 540, 545 n.3 (3d Cir. 2010) (ruling that

“because no evidence was seized at this location, this point is moot”); United States v.

Fernandez, 500 F. Supp. 2d 661, 667 (W.D. Tex. 2006); State v. Keawe, 108 P.3d 304, 310

(Haw. 2005); People v. Finch, 854 N.Y.S.2d 885, 890 (2008); State v. Sweet, 675 P.2d 1236,

1240 (Wash. App. 1984) (“Because there was no evidence to suppress, there can be no

error.”).

{20} In the case before us, no evidence was seized after the officers’ unwarranted entry

into Defendant’s hotel room. Thus, no prejudice was suffered by Defendant. Therefore, the

district court did not err in denying the motion to suppress evidence pertaining to the hotel

room search.

III. Failure to Disclose Recording

{21} After his conviction, Defendant moved for a new trial, claiming that he was

prejudiced by the State’s failure to produce the police-taped recording of Defendant’s

interview while in custody. An audio recording of part of the interview turned up after trial

and was provided to defense counsel. Defendant filed his motion for a new trial on

September 30, 2010. The State filed its response on October 15, 2010. Three days later, the

district court entered its judgment and sentence. Defendant filed his notice of appeal on

November 17, 2010. We were unable to find an order entered by the district court denying

Defendant’s motion for new trial in the court record. However, common sense would dictate
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that the court’s entry of the judgment and sentence indirectly denies the motion.

{22} We will not reverse a district court’s denial of a motion for a new trial absent a

manifest abuse of discretion. State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185

P.3d 363. “An abuse of discretion occurs when the ruling is clearly against the logic and

effect of the facts and circumstances of the case. We cannot say the [district] court abused

its discretion by its ruling unless we can characterize it as clearly untenable or not justified

by reason.” Id. (internal quotation marks and citation omitted).

{23} Our courts have adopted a three-part test to determine whether the loss of evidence

by the State that leads to a deprivation is considered reversible error. State v. Chouinard,

96 N.M. 658, 661, 634 P.2d 680, 683 (1981). A court must address whether “[(]1) [t]he

State either breached some duty or intentionally deprived the defendant of evidence; [(]2)

[t]he improperly ‘suppressed’ evidence must have been material; and [(]3) [t]he suppression

of this evidence prejudiced the defendant.” Id. The purpose of the test “is to assure that the

[district] court will come to a determination that will serve the ends of justice.” Id. Factors

to consider in applying the test “include the presence of negligence or bad faith on the part

of the state, the importance of the evidence to the defendant’s case, and the amount of other

evidence of guilt adduced at trial.” State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628

(Ct. App. 1990).

{24} In the case before us, we focus on the first and third Chouinard factors. The State

asserts that Defendant was alerted to the existence of a recorded interview by police two

years before trial; that the State repeatedly tried to obtain the recorded statement before trial;

that it was believed that the statement had been recorded over and lost; and that the recording

had been misplaced by law enforcement officers but was found after the trial ended. There

was no evidence presented of bad faith on the part of the State.

{25} If Defendant cannot show that he was prejudiced by the misplacement of the

recording, then his argument fails. To show prejudice, Defendant must establish that he was

unable to receive a fair trial without the missing evidence. State v. Sanchez,

1999-NMCA-004, ¶ 8, 126 N.M. 559, 972 P.2d 1150.

To establish . . . whether a defendant will be able to receive a fair trial

in the face of lost evidence . . . , a court must . . . weigh the lost evidence

against the remaining evidence available to the defendant, including his or

her ability to cross-examine witnesses and to use the loss of the evidence in

preparing a defense.

Id. ¶ 9.

{26} An officer present at the interview, Agent De La Garza, testified as a witness at trial

and was cross-examined by Defendant’s counsel, including specific questions about the

missing recording and the notes taken by him and a fellow officer. The ability to cross-
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examine an officer who conducted the interview and recording satisfies one factor from

Sanchez in assessing whether Defendant had the opportunity to receive a fair trial in the face

of lost evidence.

{27} Defendant argues that he could have used the recording at trial to draw out additional

evidence and to try to undermine Agent De La Garza’s account of the interview. At trial,

the State submitted as evidence the notes of two officers who were present at the interview

with Defendant. According to those notes, Defendant, after signing a waiver of his Miranda

rights, confessed to selling methamphetamine out of his room at the American Motor Inn,

including to Ortega; named the sources of the drugs he obtained; and provided details of his

weekly income from selling drugs. On the recording, which is of poor quality and captures

only a seven-minute portion of the interview, Defendant is heard telling the officers that he

sold about one ounce of methamphetamine per week to bring in about $1,800 in order to

finance his expenses living at the hotel and that one of his sources for drugs was a man

named Robert Munoz. When he testified at trial, Defendant denied selling drugs or knowing

Munoz. The recording, had it been available at trial, would have supported the notes and

testimony of the officers and would have undercut the claims of Defendant. The absence of

the recording may have benefitted Defendant because it was not available to question or to

impeach his testimony.

{28} Applying Chouinard, we conclude that Defendant has not established that he was

prejudiced by the discovery and disclosure of a portion of his recorded statement with law

enforcement officers after the trial had concluded. Therefore, it was not an abuse of

discretion for the district court to deny his motion for a new trial based on the late disclosure

of the recording.

IV. Conspiracy Conviction and Wharton’s Rule

{29} Finally, Defendant asserts that Wharton’s Rule precludes a charge of conspiracy in

this case because the underlying charge of trafficking—involving an exchange of drugs

between defendant and Ortega—is confined to only those two participants and constitutes

the same conduct as that underlying the conspiracy. The State contends that Defendant

failed to preserve this issue and that we should review such an unpreserved issue for

fundamental error. Defendant contends that Wharton’s Rule is a matter of statutory

interpretation that involves questions of double jeopardy and double jeopardy can be raised

at any time. Our United States Supreme Court has specifically held that “Wharton’s Rule

does not rest on principles of double jeopardy[.]” Iannelli v. United States, 420 U.S. 770,

782 (1975). “[Wharton’s Rule] has current vitality only as a judicial presumption [of

merger], . . . in the absence of legislative intent to the contrary.” State v. Carr, 95 N.M. 755,

766, 626 P.2d 292, 303 (Ct. App. 1981), overruled on other grounds as recognized by State

v. Olguin, 120 N.M. 740, 906 P.2d 731 (1995).

{30} Because this issue was not properly raised below and is raised for the first time on

appeal, it will be reviewed for fundamental error. State v. Cunningham, 2000-NMSC-009,
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¶ 8, 128 N.M. 711, 998 P.2d 176. The doctrine of fundamental error exists only “for the

protection of those whose innocence appears indisputabl[e], or open to such question that

it would shock the conscience to permit the conviction to stand.” Cunningham, 2000-

NMSC-009, ¶ 13 (internal quotation marks and citation omitted); see also State v. Orosco,

113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992) (finding fundamental error upon one or

more of the following bases: “there has been a miscarriage of justice;” the question of the

defendant’s guilt “is so doubtful that it would shock the conscience” to allow his conviction

to stand; or “substantial justice has not been done”). We will reverse for fundamental error

when the foundation or basis of a defendant’s case or an essential right in a defense is

affected. Id. ¶ 13.

{31} Wharton’s Rule states that “an agreement by two persons to commit a particular

crime cannot be prosecuted as a conspiracy when the particular crime is of such a nature as

to necessarily require the participation of two persons for its commission.” State v. Smith,

102 N.M. 512, 514, 697 P.2d 512, 514 (Ct. App. 1995) (internal quotation marks and

citation omitted). By raising Wharton’s Rule, the issue before us is whether the crime of

trafficking by possession with intent to distribute methamphetamine and conspiracy to

commit trafficking become one crime.

{32} “The classic Wharton’s Rule offenses–adultery, incest, bigamy, [dueling]– are

crimes that are characterized by the general congruence of the agreement and the completed

substantive offense.” Iannelli, 420 U.S. 770 at 782 (1975). In these instances, “[t]he parties

to the agreement are the only persons who participate in [the] commission of the substantive

offense[.]” Id. Wharton’s Rule applies:

(1) when the parties to the agreement are the only persons who participate in

the offense and the immediate consequences of the crime rest only on

themselves; and (2) when the agreement that attends the substantive offense

does not appear likely to pose the sort of threat to society that the law of

conspiracy was designed to avert.

Smith, 102 N.M. at 514, 697 P.2d at 514. “The most important factor . . . is that concerted

action must be logically necessary to the substantive offense. This is similar to saying that

conspiracy and the substantive offense are the same crime[.]” Id.

{33} There are only two cases in New Mexico that have addressed Wharton’s Rule, Carr

and Smith. In Carr, this Court upheld the conspiracy conviction of a defendant who wrote

a prescription that was used to pass a controlled substance on to other purchasers. 95 N.M.

at 766, 626 P.2d at 303. In Carr, we stated:

The harm involved in the substantive offense [of] trafficking in controlled

substances . . . is not restricted to the parties to the agreement. The parties to

the agreement to traffic are usually not the only persons who participate in

commission of the substantive offense: the controlled substances are passed
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on, as happened here, to other purchasers. The agreement that attends the

substantive offense does seem to pose those threats to society that the law of

conspiracy seeks to avert. An agreement to commit trafficking may very

well produce agreements to engage in a more general pattern of criminal

conduct as the controlled substances are diverted from their legitimate

medical uses. 

Id. (emphasis added).

{34} The Carr court found that because of the difference between the parties’ agreement

to traffic, where the parties were not the only persons who participated in the commission

of the substantive offense and traditional Wharton’s Rule offenses, it declined to give any

significant weight to the Rule’s presumption.

{35} In Smith, the defendant was convicted of harboring a felon and conspiracy to harbor

a felon. This Court found that the two crimes did not merge under the facts of the case

because the immediate consequences of harboring a felon rests on society, and the harboring

of the felon would be more successful if the felon knew someone was helping, thus, the

danger to society is increased. Smith, 102 N.M. at 514, 697 P.2d at 514. The Smith court

agreed that a narrow interpretation of Wharton’s Rule was required. Id. at 515, 697 P.2d at

515; see United States v. Previte, 648 F.2d 73, 77 (1st Cir. 1981) (stating Wharton’s Rule

is, to some extent, a relic of the discredited merger doctrine and should be interpreted

narrowly).

{36} The federal courts have had more opportunity to address this issue. In Iannelli, 420

U.S. 770, the United States Supreme Court carefully analyzed the Rule’s justification and

its proper role in federal law. Iannelli involved the violation of a federal gambling statute.

This statute made it a crime for five or more persons to be involved in a gambling business

prohibited by state law. The Supreme Court revisited the history of Wharton’s Rule which

was captured in Wharton’s Treatises; its relationship, if any, with double jeopardy; third

party exceptions; and legislative intent. Id. at 775, 782, 787. Iannelli explained that the

Rule is essentially an aid for purposes of determining legislative intent. The Supreme Court

found that if Congress intended to prevent the possibility of prosecuting conspiracy offenses

by merging them into the specific gambling statute, it would have explicitly said so. It did

not, therefore, Congress intended each offense to be independent of the other.

{37} The Eighth Circuit Court of Appeals has held that when more than two persons were

involved in a conspiracy to distribute drugs, Wharton’s Rule does not apply. United States

v. Jones, 801 F.2d 304, 311 (8th Cir. 1986). On the other hand, the Eighth Circuit Court of

Appeals has also held Wharton’s Rule does apply when a “mere sales agreement with

respect to contraband does not constitute a conspiracy; there must be some understanding

‘beyond’ that before the evidence can support a conviction for conspiracy.” United States

v. West, 15 F.3d 119, 121 (8th Cir. 1994) (citing to United States v. Prieskorn, 658 F.2d 631

(8th Cir. 1981)). This principle has been applied in State v. Roldan, 714 A.2d 351, 356 (N.J.
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Super. Law Div. 1998) which held that “[a] simple agreement to buy drugs is insufficient to

establish a conspiracy between the seller and the buyer.” The Roldan court further stated the

concerted criminal activity must go “beyond the kind of simple agreement inevitably

incident to the sale of contraband[.]” Id. at 182-83, 714 A.2d at 356.

{38} The case at hand is distinguishable from Carr as there were not multiple purchasers

involved, only Ortega. The charge of trafficking with intent to distribute methamphetamine

required the participation of the same two people, Defendant and Ortega, who were also

involved in any alleged conspiracy to sell the same drugs. Defendant, a single seller, and

Ortega, a single buyer, engaging in a single drug transaction. They were the only parties that

participated in this particular transfer of two plastic-wrapped packages of methamphetamine.

This simple agreement to buy drugs is insufficient to also establish a separate conspiracy

between the seller and the buyer. See West, 15 F.3d at 121; see also United States v. Hunter,

478 F.2d 1019, 1024 (7th Cir.) (1973) (stating that the required participation of the same two

persons of a conspiracy is analogous to an individual attempt to commit an individual

offense).

{39} Unless the Legislature explicitly states otherwise, Wharton’s Rule supports the

presumption that the Legislature did not intend separate punishments for the conspiracy and

the completed substantive crime. Iannelli, 420 U.S. at 785-86. After a careful reading of

NMSA 1978, Sections 30-28-2 (1979) and 30-31-20 (2006), we are unable to find any

indication that the New Mexico Legislature stated a different intention.

{40} The agreement between Defendant and Ortega to sell and purchase the

methamphetamine was logically necessary for the transferring of the methamphetamine from

one to another. Additionally, the immediate consequences of the crime rested only on

Ortega, who received a twenty-seven-year sentence and Defendant who was convicted of not

only the trafficking but the conspiracy as well. Their limited agreement between themselves

does not appear likely to pose the sort of threat to society that the law of conspiracy was

designed to avert.

{41} Our Legislature has not explicitly stated that there should be separate punishments

for the conspiracy to commit trafficking and the completed charge of trafficking, where

Defendant’s and Ortega’s concerted actions were necessary for the completion of the

trafficking offense. Wharton’s Rule precludes Defendant’s charge of conspiracy.

Substantial justice has not been done where Defendant has been convicted and sentenced for

trafficking by possession with intent to distribute methamphetamine (eighteen years, two

years parole) and for conspiracy to commit trafficking (nine years, two years parole) when

the two charges, in this case, have merged. It is therefore fundamental error to impose a

conspiracy conviction as well.

CONCLUSION

{42} For the foregoing reasons, we affirm Defendant’s conviction for trafficking, reverse
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his conviction for conspiracy, and remand to the district court to dismiss Defendant’s

conspiracy conviction and corresponding sentence.

{43} IT IS SO ORDERED.

____________________________________

M. MONICA ZAMORA, Judge

WE CONCUR:

____________________________________

RODERICK T. KENNEDY, Chief Judge

____________________________________

TIMOTHY L. GARCIA, Judge