This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,355 9 STEVEN L. GARRETT, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 12 Stephen K. Quinn, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Eleanor Brogan, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 222 Steven L. Garrett (Defendant) appeal s from the judgment, convicting him, 1 after a jury trial, of possession of a controlled substance and possession of drug 2 paraphernalia. [RP 129-130; 134] Defendant raised one issue in the docketing 3 statement, contending that the State did not establish jurisdiction by having any of 4 its witnesses testify that the incident in question happened inRoosevelt County. 5 [DS 2] The first calendar notice proposed summary affirmance. In response to 6 the first calendar notice, Defendant filed a memorandum in opposition and a 7 motion to amend the docketing statement. [1 st MIO] The second calendar notice 8 granted the motion to amend and proposed summary affirmance on all issues. 9 Defendant has filed a second memorandum in opposition that we have duly 10 considered. Unpersuaded, however, we affirm. 11 DISCUSSION 12 Issue 1: The Crimes Occurred in the State of New Mexico 13 Defendant’s second memorandum in opposition does not provide further 14 facts, authorities or analysis on this issue. [2 ndMIO 1] Being persuaded that the 15 analysis of this issue set forth in th e second calendar notice is appropriate and 16 correct, we affirm the district court on this issue. 17 “A motion for a directed verdict challenges the sufficiency of the evidence.” 18 State v. Armijo, 1997-NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919. “Substantial 193 evidence review requires analysis of whether direct or circumstantial substantial 1 evidence exists and supports a verdict of guilt beyond a reasonable doubt with 2 respect to every element essential for conviction.” State v. Kent , 2006-NMCA3 134, ¶ 10, 140 N.M. 606, 145 P.3d 86. 4 “[J]urisdiction is satisfied if the trie r of fact can infer from the evidence that 5 the crime occurred in New Mexico.” State v. Litteral , 110 N.M. 138, 143, 793 6 P.2d 268, 273 (1990); see also State v. Smith , 92 N.M. 533, 537, 591 P.2d 664, 668 7 (1979); State v. Ramirez , 89 N.M. 635, 641, 556 P.2d 43, 49 (Ct. App. 1976) 8 (discussing that “to justify conviction, th e evidence must establish every essential 9 element of the offense charged. Becausethe crime must be prosecuted where 10 committed, one of the essential elements which the State must establish is the 11 location of the crime”). To the extent th at this case could have occurred in one or 12 more counties, given that Defendant was driving on the Lovington Highway when 13 he was stopped, it is well-established that, “[i]f elements of a crime were 14 committed in different counties, the trial may be held in any county in which a 15 material element of the crime was committed.” Smith , 92 N.M. at 537, 591 P.2d 16 at 668. 17 In this case, there was substantial evidence that Defendant’s vehicle was 18 stopped by Roosevelt County police officers while traveling in Roosevelt County, 194 New Mexico. [RP 17, 18, 19] The recordproper indicates that the investigation 1 leading to the evidence of the crimes was conducted in Roosevelt County, New 2 Mexico. [Id.] The criminal complaint gives notice that the events occurred in 3 Roosevelt County, New Mexico, on or about July 30, 2007. [RP 21] The officers 4 who investigated the crimes testified attrial, and provided information to the 5 district court and the jury as to th eir credentials, backgrounds, and employment, 6 and as to where the events took place, incl uding the stop, the investigation, and the 7 automobile search at the Roosevelt County Sheriff’s Office. [RP 3, 58, 74, 122, 8 123] The jury was appropriately in structed, in accordance with UJI 14-3102 9 NMRA, that they must find, as one of the elements of th e crimes, that they 10 occurred in New Mexico on or about July 30, 2007. [RP 103, 105] 11 Under the circumstances, therefore, we continue to believe it was reasonable 12 for the trier of fact to infer that the traffic stop occurred in New Mexico. 13 Accordingly, we affirm the district court on this issue. 14 Issues 2 and 3: There Was Substantial Evidence to Support Defendant’s 15 Convictions 16 “Substantial evidence review requires analysis of whether direct or 17 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 18 reasonable doubt with respect to every element essential for conviction.” Kent , 195 2006-NMCA-134, ¶ 10. On appeal, the appe llate court views the evidence in the 1 light most favorable to the verdict, resolving all conflicts and indulging all 2 reasonable inferences in favor of the verdict. State v. Apodaca , 118 N.M. 762, 3 765-66, 887 P.2d 756, 759-60 (1994). “The reviewing court does not weigh the 4 evidence or substitute its judgment for thatof the fact finder as long as there is 5 sufficient evidence to support the verdict.” State v. Mora , 1997-NMSC-060, ¶ 27, 6 124 N.M. 346, 950 P.2d 789. 7 With regard to possession of a controlle d substance, the jury was instructed 8 that they must find the following elements of the crime to their satisfaction beyond 9 a reasonable doubt: (1) Defendant had me thamphetamine in his possession; (2) 10 Defendant knew it was methamphetamine; and (3) this happened in New Mexico 11 on or about July 30, 2007. [RP 103] With regard to possession of drug 12 paraphernalia, the jury was instructed thatthey must find the following elements of 13 the crime to their satisfaction beyond a reasonable doubt: (1) Defendant possessed 14 drug paraphernalia; (2) Defendant intended it to be used in such a way as to plant, 15 propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, 16 process, prepare, test, anal yze, pack, repack, store, c ontain conceal, inject, ingest, 17 inhale or otherwise introduce into the human body a controlled substance; and (3) 18 this happened in New Mexico on or about July 30, 2007. [RP 105] With regard to 196 both crimes, the jury was also instructedthat Defendant acted intentionally when 1 he committed the crimes. [RP 106] 2 The jury was also instructed on constructive possession; that is, a person is 3 in possession of methamphetamine when he knows it is on his person or in his 4 presence and he exercised control over it. [RP 104] The jury was further 5 instructed that even if the substance is not in his physical presence, Defendant is in 6 possession if he knows where it is, and he ex ercises control over it. [Id.] Finally, 7 the jury was instructed that two or morepeople can have possession of a substance 8 at the same time. [Id.] 9 The State presented evidence that on July 30, 2007, Officer Mondragon 10 initiated a traffic stop of Defendant’s carafter observing it weaving in a traffic 11 lane. [MIO 2] After stopping the vehicle, the officer noticed that Defendant was 12 not under the influence of alcohol. [Id.] The officer observed several scabs on 13 Defendant’s arms and asked him if there were any drugs in the car. [Id.] The 14 officer testified that Defendant told him there were no drugs in the car and that he 15 would not consent to a search of the car because it did not belong to him. [Id.] 16 Defendant did, however, allow the officer to search his personal travel bags. [Id.] 17 Inside the bags was a glass pipe with a white colored residue that later tested 18 positive for methamphetamine. [Id.] De fendant was arrested for possession of 197 drug paraphernalia. [Id.] After a canin e officer was called to the scene, the dog 1 alerted to the rear passenger door. [Id.] The officer asked Defendant what the dog 2 was alerting to and Defendant stated that he did not know because it was his 3 friend’s car. [MIO 2-3] The car was towe d, a search warrant obtained, and the car 4 was searched. [MIO 3] The officers f ound a glass pipe with white residue, three 5 small clear plastic jewelry bags containi ng a white crystal substance, one larger 6 clear plastic jewelry bag containing a minuscule amount of white crystal substance, 7 and scales. [Id.] All substances te sted positive for methamphetamine. [Id.] 8 In the second memorandum [2 ndMIO 2], Defendant continues to rely on 9 State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), andState v. Boyer , 10 103 N.M. 655, 658, 712 P.2d 1, 4 (Ct. App. 1985), to support his contention that 11 there was insufficient evidence to support his conviction for possession of drug 12 paraphernalia. We are not persuaded. The glass pipe with white colored residue 13 that tested positive for methamphetamine was found in travel bags that Defendant 14 admitted were his pursuant to a consensual search. We affirm Defendant’s 15 conviction for possession of drug paraphernalia. 16 With regard to the methamphetamine in the jewelry bags, the scale, and 17 other items found in the vehicle, including in the center console and in a first aid 18 kit [RP 122-23], Defendant denied knowing th at the items were there because the 198 car was not his own car. In the second memorandum, Defendant continues to 1 contend that the State failed to present substantial evidence to show beyond a 2 reasonable doubt that Defendant constructively possessed methamphetamine, that 3 he had knowledge that methamphetamine wa s in the car and that he exercised 4 control over it. [2 ndMIO 2] Defendant points out that the methamphetamine was 5 not in plain view of Defendant. [2 ndMIO 1] Defendant cites State v. Garcia , 6 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (holding that “[p]roximity alone 7 does not constitute possession. This Court must be able to articulate a reasonable 8 analysis that the [fact-finder] might have used to determine knowledge and 9 control” (internal quotation marks and citations omitted)); see also State v. 10 Sizemore , 115 N.M. 753, 757, 858 P.2d 420, 424 (Ct. App. 1993) (recognizing 11 that “[p]resence in the proximity of stolen goods is insufficient to support a 12 conviction for receiving stolen property” and that “[t]his is particularly true when 13 the area is shared with other people”). [MIO 1-2] We are not persuaded. 14 In the second calendar notice, this C ourt articulated a reasonable analysis 15 that the fact finder might have used to determine knowledge and control; we did 16 not simply rely on “mere proximity” as substantial evidence to support 17 Defendant’s constructive possession of the methamphetamine. In this regard, the 18 jury could reasonably infer that Defendant knew the methamphetamine was in the 199 vehicle in the jewelry bags and that hewas in constructive possession of it. 1 Defendant was driving his friend’s car, but hewas the sole occupant of the vehicle. 2 The methamphetamine was found in the center console and in the first aid kit on 3 the front passenger seat, in small plastic baggies used for jewelry. [RP 122-23] 4 These are areas in the control of the driv er of the vehicle. Defendant’s own travel 5 bags contained drug paraphernalia with methamphetami ne residue and jewelry. 6 [Id.] Although Defendant contended that he did not know that the 7 methamphetamine was in the vehicle, “the ju ry is free to reject Defendant’s version 8 of the facts.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 9 We affirm Defendant’s conviction for possession of methamphetamine. 1010 Issue 4: The District Court Did Not Abuse Its Discretion In Denying the 1 Motion for a Continuance 2 The grant or denial of a continuance is within the sound discretion of the 3 trial court, and the burden of establis hing abuse of discretion rests with the 4 defendant. State v. Salazar , 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. 5 “An abuse of discretion occurs when the ruling is clearly against the logic and 6 effect of the facts and circumstances of the case. We cannot say the trial court 7 abused its discretion by its ruling unless wecan characterize it as clearly untenable 8 or not justified by reason.” Id. (internal quotation marks and citation omitted). 9 Defendant must establish not only an abuse of discretion, but also that the abuse 10 was “to the injury of the defendant.” Id. (quoting State v. Nieto , 78 N.M. 155, 11 157, 429 P.2d 353, 355 (1967)). “There are a number of factors that trial courts 12 should consider in evaluating a motion for continuance, including the length of the 13 requested delay, the likelihood that a delay would accomplish the movant’s 14 objectives, the existence of previous conti nuances in the same matter, the degree of 15 inconvenience to the parties and the c ourt, the legitimacy of the motives in 16 requesting the delay, the fault of the movant in causing a need for the delay, and 17 the prejudice to the movant in denying the motion.” State v. Torres , 1999-NMSC18 010, ¶ 10, 127 N.M. 20, 976 P.2d 20. 1911 In the second memorandum, Defendant does not provide further facts, 1 authorities, or arguments to this Court’ s analysis of this issue in the second 2 calendar notice. Under the circumstances, we remain persuaded that the district 3 court did not abuse its discretion in denying the June 24, 2008, request for a 4 continuance. 5 The following procedural facts are relevant to our analysis of this issue. The 6 criminal information was filed on August 20, 2007. [RP 1] Defendant was 7 initially appointed a public defender as hi s attorney. [RP 4] Defendant was 8 initially required to post an $11,500 appearance bond and arrange for ankle 9 bracelet monitoring. [RP 9] The bond was subsequently reduced to $10,000. [RP 10 13] On September 25, 2007, a private attorney entered an appearance for 11 Defendant. [RP 23] In October 2007, Defendant was allowed the opportunity to 12 obtain employment and arrange for ankle monitoring. [RP 26-27] Private 13 counsel moved to withdraw in February 2008, and the district court granted the 14 motion on February 4, 2008. [RP 33-4] The State filed its witness list on 15 February 11, 2008, its notice of open filedisclosure and the notice of alibi or 16 entrapment. [RP 37-39] On February 13, 2008, the State filed a motion to set 17 aside the bond and conditions of Defendant’s release. [RP 41] The motion 18 indicated that Defendant was not comply ing with the conditions of his release, 1912 including maintaining the ankle monitoring. [Id.] A bench warrant was issued for 1 Defendant’s arrest. [RP 44] On February 29, 2008, the State moved for 2 appointment of a public defender following the withdrawal of Defendant’s private 3 attorney. [RP 45] Defendant was ordere d to be represented by the office of the 4 public defender on the same date. [RP 46] On March 19, 2008, a public defender 5 attorney entered an appearance and assertedDefendant’s speedy trial rights. [RP 6 47] Thereafter, the State filed a petition for extension of the six-month rule. [RP 7 49-50] The motion asserts that Defendanthas not been set for trial due to 8 Defendant’s lack of cooperation with his attorneys, Defendant’s flight, and the 9 need to determine new counsel. [RP 50, ¶¶ 6, 9] The time for trial was extended 10 to October 7, 2008. [RP 52] Another bench warrant was issued for Defendant’s 11 arrest on May 9, 2008. [RP 53] Follo wing his arrest, Defendant posted bond and 12 was released again. [RP 60] On June 17, 2008, the State filed an amended witness 13 list that included the witnesses from the February list as well as the lab analyst. 14 [RP 58] Witnesses were subpoenaed for a June 30, 2008, trial. [RP 62, 66] On 15 June 24, 2008, Defendant filed a motion to continue the June 30, 2008 trial, 16 contending that his attorney had just received the lab results and other discovery 17 and had not had enough time to prepare for trial. [RP 64] On June 25, 2008, the 18 State filed another motion to revoke bond and modify conditions of Defendant’s 1913 release, asserting that Defendant had cont acted and threatened a witness. [RP 67- 1 68] Bond was revoked and Defendant was returned to custody. [RP 72] 2 The procedural history of this case i ndicates unwarranted delays occasioned 3 by Defendant, including his repeated failures to abide by the conditions of his 4 release, his absconding, and his failure to cooperate with the district court and 5 counsel. Defendant was appointed replacement counsel in March 2008. The 6 State’s witness list, as well as other disc overy, except the lab analysis results, were 7 available since February 2008. There wa s no evidence that Defendant intended to 8 call witnesses other than the State’s noticedlist of witnesses. Defense counsel 9 indicated that he intended to raise the ju risdictional issue (Issue 1 above) at trial, 10 which he did. There is no indication thatthere were any viable pretrial motions to 11 be filed. Under the circumstances, De fendant was not prejudiced by the district 12 court’s decision to deny the continuance. See, e.g. , In re Ernesto M., Jr. , 1996- 13 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not 14 a showing of prejudice.”). We know of no authority that requires the district court 15 to delay a trial until the eve of the expiration of a six-month rule extension time 16 period. We affirm the district court on this issue. 1714 CONCLUSION 1 We affirm Defendant’s convictions. 2 IT IS SO ORDERED. 3

4 MICHAEL E. VIGIL, Judge 5 WE CONCUR: 6

7 CYNTHIA A. FRY, Chief Judge 8

9 LINDA M. VANZI, Judge 10