2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 31 - Controlled Substances › Section 30-31-22 - Controlled or counterfeit substances; distribution prohibited.

A. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally distribute or possess with intent to distribute a controlled substance or a controlled substance analog except a substance enumerated in Schedule I or II that is a narcotic drug, a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug or methamphetamine, its salts, isomers and salts of isomers. A person who violates this subsection with respect to:
(1) synthetic cannabinoids is:
(a) for the first offense, guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(b) for the second and subsequent offenses, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(c) for the first offense, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(d) for the second and subsequent offenses, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(2) any other controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a controlled substance enumerated in Schedule I, II, III or IV except a substance enumerated in Schedule I or II that is a narcotic drug, a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug or methamphetamine, its salts, isomers and salts of isomers, is:
(a) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(b) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(3) a controlled substance enumerated in Schedule V or a controlled substance analog of a controlled substance enumerated in Schedule V is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than five hundred dollars ($500) or by imprisonment for a definite term not less than one hundred eighty days but less than one year, or both.
B. It is unlawful for a person to distribute gamma hydroxybutyric acid or flunitrazepam to another person without that person's knowledge and with intent to commit a crime against that person, including criminal sexual penetration. For the purposes of this subsection, "without that person's knowledge" means the person is unaware that a substance with the ability to alter that person's ability to appraise conduct or to decline participation in or communicate unwillingness to participate in conduct is being distributed to that person. Any person who violates this subsection is:
(1) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(2) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
C. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally create or deliver, or possess with intent to deliver, a counterfeit substance. A person who violates this subsection with respect to:
(1) a counterfeit substance enumerated in Schedule I, II, III or IV is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(2) a counterfeit substance enumerated in Schedule V is guilty of a petty misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for a definite term not to exceed six months, or both.
D. A person who knowingly violates Subsection A or C of this section while within a drug-free school zone with respect to:
(1) synthetic cannabinoids is:
(a) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(b) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(c) for the first offense, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(d) for the second and subsequent offenses, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(2) any other controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a controlled substance enumerated in Schedule I, II, III or IV except a substance enumerated in Schedule I or II that is a narcotic drug, a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug or methamphetamine, its salts, isomers and salts of isomers, is:
(a) for the first offense, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(b) for the second and subsequent offenses, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(3) a controlled substance enumerated in Schedule V or a controlled substance analog of a controlled substance enumerated in Schedule V is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(4) the intentional creation, delivery or possession with the intent to deliver:
(a) a counterfeit substance enumerated in Schedule I, II, III or IV is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(b) a counterfeit substance enumerated in Schedule V is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment for a definite term not less than one hundred eighty days but less than one year, or both.
E. Notwithstanding the provisions of Subsection A of this section, distribution of a small amount of synthetic cannabinoids for no remuneration shall be treated as provided in Paragraph (1) of Subsection B of Section 30-31-23 NMSA 1978.
History:
1953 Comp., § 54-11-22, enacted by Laws 1972, ch. 84, § 22; 1974, ch. 9, § 3; 1977, ch. 183, § 1; 1980, ch. 23, § 3; 1987, ch. 68, § 4; 1990, ch. 19, § 4; 2005, ch. 280, § 6; 2006, ch. 17, § 3; 2011, ch. 16, § 2; 2021 (1st S.S.), ch. 4, § 67.
ANNOTATIONS
Cross references.
— For legal use of marijuana in research,
see
26-2A-1 to 26-2A-7 NMSA 1978.
The 2021
(1st S.S.)
amendment,
effective June 29, 2021, removed the distribution of marijuana from the application of the section; in Subsection A, Paragraph A(1), after the paragraph designation, deleted "marijuana or"; and in Subsection D, Paragraph D(1), after the paragraph designation, deleted "marijuana or".
The 2011 amendment,
effective March 31, 2011, made it a crime to possess and distribute synthetic cannabinoids.
The 2006 amendment,
effective July 1, 2006, added a provision to Subsection A to provide that it is unlawful to possess with intent to distribute methamphetamine and its salts and isomers; added the provision to Paragraph (2) of Subsection A that a person who violates Subsection A with respect to methamphetamine and its salts and isomers is subject to the penalties specified in Paragraph (2) of Subsection A; deleted the former provision in Subsection D that excluded private property residentially zoned or used primarily as a residence; and added the provision in Paragraph (2) of Subsection D that a person who violates Subsections A and C while in a drug-free school zone with respect to methamphetamine and its salts and isomers is subject to the penalties specified in Paragraph (2) of Subsection D.
The 2005 amendment,
effective June 17, 2005, added Subsection B to provide that it is unlawful distribute the specified chemicals to a person without that person's knowledge with the intent to commit a crime against that person; defined "without that person's knowledge"; and provided that a first offense of violating Subsection B is a third degree felony and a second and subsequent offense is a second degree felony.
The 1990 amendment,
effective July 1, 1990, added Subsection C, designated the former last sentence of Subsection B as present Subsection D, and made minor stylistic changes in Subsections A and B.
I. GENERAL CONSIDERATION.
Title constitutional.
— Sections 30-31-20 to 30-31-25 NMSA 1978, which define unlawful activities and provide penalties therefor, are not unconstitutional on the grounds that "unlawful activities" are not mentioned in the title of the act.
State v. Atencio
, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Greater penalty imposed on seller than on user.
— The legislature clearly intended to impose greater penalties on the seller of a controlled substance than upon the user.
State v. Sandoval
, 1982-NMCA-091, 98 N.M. 417, 649 P.2d 485.
Marijuana use not intrinsic part of religion.
— Where the evidence shows that defendant's belief was derived from defendant's personal views of the bible, and those views under the evidence are no more than that the use and distribution of marijuana was permitted because marijuana is a gift from God, such a personal use does not amount to an intrinsic part of a religion.
State v. Brashear
, 1979-NMCA-027, 92 N.M. 622, 593 P.2d 63.
Effect of Subsection C (now Subsection E).
— The "notwithstanding" provision of Subsection C (now E) does not provide for a lesser penalty for the first marijuana distribution offense but rather affects only the penalties for second and subsequent marijuana distribution offenses; for second and subsequent marijuana distribution offenses that factually come within Subsection C (now Subsection E), the penalty of Section 30-31-23B(3) NMSA 1978 applies, and a defendant thus avoids the higher penalty stated in Subsection A(1)(b) of this section.
State v. Bustamante
, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460.
Penalty applicable to drugs scheduled by regulation.
— Express legislative authority is not required to make the penalty provisions of the Controlled Substances Act applicable to drugs scheduled by administrative regulation.
State v. Reams
, 1981-NMCA-158, 98 N.M. 372, 648 P.2d 1185,
aff'd in part, rev'd on other grounds
, 1982-NMSC-075, 98 N.M. 215, 647 P.2d 417.
Sections not conflicting.
— There is no conflict between Subsection A of this section and Sections 30-31-20A(3) and B NMSA 1978.
State v. Atencio
, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Distribution of quaalude.
— This section, and not Section 26-1-16A NMSA 1978, is the appropriate legislation under which defendants are to be prosecuted for allegedly unauthorized distribution of quaalude.
State v. Reams
, 1982-NMSC-075, 98 N.M. 215, 647 P.2d 417.
Sentencing under Habitual Offenders Act.
— In 1983 the habitual offender statute was amended to include persons convicted of narcotics offenses, overruling that part of
State v. Lujan
, 1966-NMSC-051, 76 N.M. 111, 412 P.2d 405, which held that the Habitual Offender Act did not apply to persons convicted under the Controlled Substances Act.
Minner v. Kerby
, 30 F.3d 1311 (10th Cir. 1994).
Applicability of former habitual criminal law to burglary conviction after drug offense.
— There was no conflict between the provisions of Subsection A of this section and Section 31-18-5 NMSA 1978 (repealed,
see
Section 31-18-17 NMSA 1978), nor any legislative intent within the Controlled Substances Act, to prohibit use of a Controlled Substances Act conviction to enhance a subsequent burglary conviction, since it was the fact of the prior felony that was the basis for the enhanced sentence for the current burglary.
State v. Jordan
, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620.
II. ELEMENTS OF DISTRIBUTION OF CONTROLLED OR COUNTERFEIT SUBSTANCE.
Distribution by prescription.
— When a physician writes a prescription neither for a legitimate medical purpose nor in the usual course of his professional practice, he is "distributing" drugs.
State v. Carr
, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981),
overruled on other grounds by
State v. Olguin
, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92,
aff'd in part
, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Narcotic drugs not included.
— Subsection A of this section concerns unlawful conduct involving controlled substances other than the narcotic drugs enumerated in Schedules I and II.
State v. Atencio
, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Drugs excluded.
— The "except" language in Subsection A excludes a narcotic drug such as heroin, enumerated in Schedule I, from the purview of the subsection.
State v. Atencio
, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Sale of narcotics is not involved under this section.
State v. Montoya
, 1974-NMCA-025, 86 N.M. 155, 520 P.2d 1100,
overruled on other grounds by
State v. Bender
, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.
Mere possession insufficient.
— A conviction based on the offense of possession of marijuana with intent to illegally sell and deliver cannot be sustained upon proof of illegal possession alone and the verdict and judgment based thereon must be reversed.
State v. Moreno
, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594.
Place of distribution immaterial.
— The crime of possession with intent to distribute is complete if there is possession with the requisite intent, and the state is not required to prove the place of the intended distribution.
State v. Bowers
, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975).
III. DOUBLE JEOPARDY.
Double jeopardy.
— Defendant's convictions for possession of methamphetamine and possession of methamphetamine with intent to distribute based on a single act of possessing methamphetamine violated the Double Jeopardy Clause.
State v. Quick
, 2009-NMSC-015, 146 N.M. 80, 206 P.3d 985.
Lesser included offense.
— The separate crimes of possession of methamphetamine and possession of methamphetamine with intent to distribute apply in the alternative when based on a single act of possession.
State v. Quick
, 2009-NMSC-015, 146 N.M. 80, 206 P.3d 985.
Possession is lesser offense necessarily included in distribution of marijuana.
State v. Medina
, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.
Distribution prosecution barred by conviction of possession.
— Where defendant was convicted of the lesser offense of possession of marijuana, the principles of double jeopardy barred his subsequent prosecution of the greater offense of distribution.
State v. Medina
, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.
Retrial for possession barred.
— When two counts were charged in an indictment, one for illegal possession of marijuana and the other for possession with intent to sell, an instruction by the court that the jury was to disregard the possession count if it found defendant guilty of the latter offense operated as an acquittal on the possession count and prevented retrial of this issue when the verdict on possession with intent to distribute was overturned.
State v. Moreno
, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594.
Constructive proof of possession sufficient.
— Proof of actual possession is not necessary to sustain a conviction of possession of marijuana with intent to distribute. Constructive possession will suffice.
State v. Muniz
, 1990-NMCA-105, 110 N.M. 799, 800 P.2d 734, cert. denied, 110 N.M. 749, 799 P.2d 1121.
IV. EVIDENCE AND PROOF.
A. IN GENERAL.
Police officer's suspicions based on experience.
— Where the police officer had 11 years of experience, of which he had spent eight years in the drug interdiction program actively participating in exercises on the freeways in various counties, and he estimated making an average of five drug trafficking arrests per year during that time, with up to 85 percent of those arrests involving rental cars and he testified that in his experience, it was common to find rental cars being used to transport drugs, frequently where the actual renter of the vehicle was not present, in light of the totality of the circumstances and the officer's training and experience, the officer's suspicion about drugs was based on specific articulable facts and the reasonable inferences that could be drawn from those facts.
State v. Van Dang
, 2005-NMSC-033, 138 N.M. 408, 120 P.3d 830.
Nature of substance inferred.
— Where all of the alleged marijuana was in the form of bricks having the same size, color and appearance as those tested, the fact finder could infer from the evidence that the remaining substance was the same as the tested portion.
State v. Bowers
, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975).
Evidence not inherently improbable.
— Testimony in prosecution for unlawful sale and possession of marijuana was not inherently improbable despite fact that defendant was claimed to have insisted on delivering the cigarettes in question in the restroom where only he and undercover officer were present, yet afterwards supposedly received the money for the transaction and discussed other possible dealings in a car in the presence of several other persons.
State v. Soliz
, 1969-NMCA-043, 80 N.M. 297, 454 P.2d 779.
Establishing entrapment.
— The necessity of having to resort to a greater degree of subterfuge, or to exercise more persistence, in making inquiries to set up an illegal sale of marijuana, without more, does not constitute evidence of illegal entrapment, nor is it necessary that a suspected crime be in the process of being committed in order to show a predisposition to commit that crime.
State v. Akin
, 1965-NMSC-078, 75 N.M. 308, 404 P.2d 134.
Similar offenses indicative of predisposition.
— When the defense is entrapment, evidence of similar narcotics offenses bears on the defendant's predisposition, or readiness and willingness, to commit the offenses for which he is charged; and evidence of prior similar sales of heroin within a period shortly before those in question was admissible on the issue of entrapment.
State v. Anaya
, 1969-NMCA-120, 81 N.M. 52, 462 P.2d 637.
Entrapment for the jury.
— Defendant's testimony that he was having financial difficulties, with his wife expecting a baby and his daughter having problems, and that he considered agent's numerous requests that he obtain marijuana for a month or two before he finally agreed to involve himself, raised a factual issue as to whether the criminal conduct was the product of the agent's creative activity.
State v. Martinez
, 1971-NMCA-110, 83 N.M. 13, 487 P.2d 923.
Entrapment not shown.
— Suggestion that the act of officer in supplying the defendant with his favorite brand of whiskey constituted undue inducement was without merit where defendant not only dealt in the illegal sale of beer but also drank beer and whiskey of his own as well as that furnished by others.
State v. Akin
, 1965-NMSC-078, 75 N.M. 308, 404 P.2d 134.
Evidence of knowledge and control.
— Even if someone else had knowledge of the presence of marijuana in defendant's bedroom and exercised some control over it, defendant could also have had sufficient knowledge and control to be in constructive possession, and the link establishing defendant's knowledge and control was evidence of his commerce in illicit drugs.
State v. Muniz
, 1990-NMCA-105, 110 N.M. 799, 800 P.2d 734, cert. denied, 110 N.M. 749, 799 P.2d 1121.
B. CIRCUMSTANTIAL EVIDENCE.
Inference of intent to distribute.
— While there was no evidence of defendants' sale or an attempted sale of marijuana, the possession of 246.15 pounds of the substance, together with the defendants' activities, allowed the court to infer that the defendants had the necessary intent to distribute.
State v. Bowers
, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975).
Evidence of the amount of the cocaine possessed, about three grams, and evidence of the packaging and purity of the cocaine, as well as evidence that defendant had on his person a relatively large amount of cash, supported the state's argument that appellant intended to distribute the cocaine.
Minner v. Kerby
, 30 F.3d 1311 (10th Cir. 1994).
C. SUFFICIENCY OF EVIDENCE.
Shared criminal intent.
— Evidence regarding marijuana transaction established more than the mere presence of the defendant during the consummation of the sale, supporting a finding that he was in charge and directing the sale, or at least counseling, aiding and abetting in its consummation and sharing a criminal intent and purpose with the others.
State v. Favela
, 1968-NMCA-065, 79 N.M. 490, 444 P.2d 1001.
Evidence of possession.
— There was sufficient evidence for conviction since it was shown that the defendant was the owner of the premises from which the sale of illegal drugs was carried out in her presence and within her view.
State v. Chandler
, 1995-NMCA-033, 119 N.M. 727, 895 P.2d 249, cert. denied, 119 N.M. 617, 894 P.2d 394.
Constructive possession and sale shown.
— Evidence that witness bought six ounces of marijuana from defendant, who then gave witness detailed instructions as to the location of the drug behind a metal shack near the road leading to the airport, was ample evidence that defendant had constructive possession of and sold the marijuana to the witness.
State v. Wesson
, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965.
Testimony of a single witness was sufficient evidence for conviction
of unlawful possession and sale of marijuana.
State v. Soliz
, 1969-NMCA-043, 80 N.M. 297, 454 P.2d 779.
Modified trustworthiness standard did not apply to defendant's extrajudicial statements.
— Where defendant was convicted of conspiracy to commit drug trafficking by distribution, his pre-crime and course-of-crime statements were not subject to the modified trustworthiness standard, because the majority position views statements made prior to and in the course of the crime as bearing none of the indicia of unreliability as post-crime confessions and that there is little need for independent proof that the crime occurred as a safeguard against a conviction for an imagined crime where the defendant's statements at issue were made in the course of the crime.
State v. Saiz
, 2017-NMCA-072, cert. denied.
Sufficient evidence of conspiracy to commit trafficking by distribution.
— Where defendant was convicted of conspiracy to commit drug trafficking by distribution, defendant's statements assuring the undercover officer of the existence of an agreement to sell him methamphetamine and his actions attempting to achieve the sale were sufficient evidence to prove beyond a reasonable doubt that defendant committed conspiracy to commit drug trafficking by distribution, and it was irrelevant that defendant did not receive money from the undercover officer, no drugs were ever produced or verified, and no co-conspirator was ever seen, identified, or verified.
State v. Saiz
, 2017-NMCA-072, cert. denied.
Evidence sufficient to find intent to distribute.
— In prosecution for possession of methamphetamine with intent to distribute, based upon the record, where the state presented enough circumstantial evidence to support an inference of both knowledge and control, and therefore possession of methamphetamine, there was sufficient evidence from which a rational jury could have found that defendant intended to distribute that methamphetamine.
State v. Barber
, 2004-NMSC-019, 135 N.M. 621, 92 P.3d 633.
Evidence sufficient to infer knowledge.
— Defendant's conduct in selling pills, coupled with his assertion that they would get an undercover agent "good and high," was sufficient evidence from which to infer defendant's knowledge of a controlled substance.
State v. Martinez
, 1986-NMCA-069, 104 N.M. 584, 725 P.2d 263.
Evidence sufficient to support conviction.
— Evidence, including defendant's exclusive control of the vehicle in which marijuana was found, his lies to the arresting officer, and his nervous demeanor were sufficient to allow a jury to find that he had knowledge of the marijuana.
State v. Hernandez
, 1998-NMCA-082, 125 N.M. 661, 964 P.2d 825.
An undercover agent's testimony that defendant sold him marijuana on two occasions was sufficient evidence to support defendant's conviction for distributing marijuana.
State v. Laskay
, 1986-NMCA-008, 103 N.M. 799, 715 P.2d 72.
Defendant's conviction for possession of marijuana with intent to distribute was affirmed, where the evidence showed that: (1) the black book that defendant used for his drug transactions was kept in his residence, (2) defendant used the bedroom in which the marijuana was found at least to the extent of keeping his correspondence, including a bill for the pager used in his drug transactions, and (3) the marijuana found in a closet was packaged for distribution.
State v. Muniz
, 1990-NMCA-105, 110 N.M. 799, 800 P.2d 734, cert. denied, 110 N.M. 749, 799 P.2d 1121.
Evidence was sufficient to support defendant's conviction for possession of a controlled substance with intent to distribute where he was in a closed bathroom alone with the drugs and paraphernalia, he had no clean clothes with him, and after five minutes in the bathroom, he had not taken a shower and there was no indication that he was planning to do so; additionally, the folded business card found on the toilet with a powdery substance in the crease and with handwritten notations of what appeared to have been drug transactions, connected defendant to the control over and distribution of the drugs.
State v. Barber
, 2003-NMCA-053, 133 N.M. 540, 65 P.3d 1095,
aff'd
, 2004-NMSC-019, 135 N.M. 621, 92 P.3d 633.
Sufficient evidence that chemicals were synthetic cannabinoids.
— Where defendant was convicted of trafficking methamphetamine and distribution of synthetic cannabinoids based on evidence that an accomplice, at the direction of defendant, delivered methamphetamine and the chemicals PB-22 and 5F-PB22 hidden in deodorant sticks to an inmate confined in the Curry county detention center, and where defendant claimed that the state failed to prove that the substances were synthetic cannabinoids because the particular chemicals were not listed as controlled substances under the New Mexico Controlled Substances Act (CSA), there was sufficient evidence to establish beyond a reasonable doubt that the chemicals collected from the deodorant sticks were "synthetic cannabinoids" within the meaning of this section where the state presented testimony from an expert in forensic chemistry that the chemicals PB-22 and 5F-PB22 are categorized as synthetic cannabinoids because while completely synthetic, the chemicals mimic the effects of cannabis.
State v. Salazar
, 2018-NMCA-030, cert. denied.
Sufficient evidence of distribution of synthetic cannabinoids.
— Where defendant was charged with trafficking methamphetamine and distribution of synthetic cannabinoids after the state alleged that an accomplice, at the direction of defendant, delivered methamphetamine and synthetic cannabinoids hidden in deodorant sticks to an inmate confined in the Curry county detention center, there was sufficient evidence to sustain defendant's convictions beyond a reasonable doubt where the state presented evidence of recorded phone calls between defendant and the inmate where, according to testimony by the investigating officer, the two men used code words to discuss that defendant was going to obtain illegal narcotics by using the inmate's money from the jail, hide the narcotics in hygiene products, and send the hygiene products into the jail through a third person, and evidence that an inspection of the hygiene products at issue contained a green leafy substance and crystal-like substance wrapped in small baggies in the bottom of deodorant sticks, which were later identified as methamphetamine and synthetic cannabinoids.
State v. Salazar
, 2018-NMCA-030, cert. denied.
V. JURY INSTRUCTIONS.
Instructing on intent.
— An instruction substantially in terms of the statute is sufficient.
State v. Tucker
, 1974-NMCA-049, 86 N.M. 553, 525 P.2d 913, cert. denied, 86 N.M. 528, 525 P.2d 888,
overruled on other grounds by
State v. Bender
, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.
Instructions which are phrased in the terms of this statute were sufficient on element of intent.
State v. Fuentes
, 1973-NMCA-069, 85 N.M. 274, 511 P.2d 760, cert. denied, 85 N.M. 265, 511 P.2d 751.
Instruction defining possession.
— In prosecution for possession of methamphetamine with intent to distribute, although defendant would have been entitled to a jury instruction defining possession, absent defense counsel's request, the trial court was not required to provide the instruction sua sponte.
State v. Barber
, 2004-NMSC-019, 135 N.M. 621, 92 P.3d 633.
Presumption of innocence.
— In prosecution for unlawfully selling and unlawfully furnishing or giving away marijuana, it was error for the trial court to fail to instruct the jury on the presumption of innocence, where defendant requested an instruction thereon.
State v. Henderson
, 1970-NMCA-022, 81 N.M. 270, 466 P.2d 116.
Law reviews.
— For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M. L. Rev. 63 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 179, 181, 187, 188, 191.
Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 35 A.L.R.3d 939.
Permitting unlawful use of narcotics in private home as criminal offense, 54 A.L.R.3d 1297.
Conviction of possession of illicit drugs found in premises or of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.
Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978.
Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.
State law criminal liability of licensed physician for prescribing or dispensing drug or similar controlled substance, 13 A.L.R.5th 1.
Sufficiency of random sampling of drug or contraband to establish jurisdictional amount required for conviction, 45 A.L.R.5th 1.
Sufficiency of evidence that possessor of heroin had intent to distribute it, so as to violate 21 USCS § 841(a)(1), 78 A.L.R. Fed. 413.
Sufficiency of evidence that possessor of marijuana had intent to distribute it, so as to violate 21 USCS § 841(a)(1), 79 A.L.R. Fed. 113.
Sufficiency of evidence that possessor of controlled substance other than cocaine, heroin, or marijuana had intent to distribute it, so as to violate 21 USCS § 841(a)(1), 80 A.L.R. Fed. 507.
Sufficiency of showing, in prosecution under Travel Act (18 USC § 1952), of act by accused, subsequent to accused's travel or use of facilities in interstate or foreign commerce, which furthers unlawful activity involving narcotics or controlled substances, 113 A.L.R. Fed. 625.
Admissibility, under Rule 404(b) of Federal Rules of Evidence (28 USCS Appx, Federal Rules of Evidence, Rule 404(b)), of evidence of accused's prior use of illegal drugs in prosecution for conspiracy to distribute such drugs, 114 A.L.R. Fed. 511.
28 C.J.S. Drugs and Narcotics § 156 et seq.