 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 29,145

10 EDGAR RUEDA,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Douglas Driggers, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Defendant Edgar Rueda (Defendant) appeals from the judgment and order
 1 partially suspending sentence, convicting him of possession of drug paraphernalia and

 2 bringing contraband onto prison grounds. [RP 62] Defendant raises one issue on

 3 appeal: whether the district court committed reversible error by denying Defendant’s

 4 motion to dismiss as a matter of law. [DS 2] This Court’s calendar notice proposed

 5 summary affirmance. [Ct. App. File, CN1] Defendant has filed a memorandum in

 6 opposition. [Ct. App. File, MIO] Unpersuaded, we affirm.

 7 DISCUSSION

 8          The issue of whether the district court correctly interpreted NMSA 1978,

 9 Section 30-22-14(B) (1976), presents a question of law that we review de novo. State

10 v. Cole, 2007-NMCA-099, ¶ 7, 142 N.M. 325, 164 P.3d 1024 (citing State v. Rowell,

11 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (stating that questions of statutory

12 construction are reviewed de novo)). “Section 30-22-14(B) provides, in relevant part,

13 that ‘[b]ringing contraband into a jail consists of carrying contraband into the confines

14 of a county or municipal jail.’” Id. (alteration in original). “Marijuana is contraband

15 within the meaning of the statute.” Id. See Section 30-22-14(C)(4) (defining

16 contraband as “any controlled substance, as defined in the Controlled Substances

17 Act”).

18          The facts of this case are undisputed. Defendant was outside the prison, but in

19 the custody of the prison, on a work detail. [DS 2] Upon reentering the prison,


                                               2
 1 Defendant was searched and marijuana and a foil marijuana pipe were located on his

 2 person. [RP 12] Defendant claimed that he found the marijuana while on work detail

 3 outside the facility and decided to keep it. [Id.] Defendant also stated that he found

 4 the foil pipe in a different location on the same work detail. [Id.] Defendant

 5 concealed the contraband in his shoe in order to smuggle it into the prison. [Id.] After

 6 the contraband was found a chemical test confirmed it was marijuana. [Id.]

 7         In his motion to dismiss as a matter of law, Defendant pointed out that he did

 8 not reenter the prison voluntarily. [RP 29-31] Defendant argues that Cole holds that

 9 in order to commit bringing contraband into a jail, the accused had to be entering the

10 jail voluntarily. [RP 30] Since “at no time did [Defendant] enter the prison

11 voluntarily[,]” Count 1 of the indictment charging Defendant with bringing

12 contraband onto the prison grounds must be dismissed as a matter of law. [RP 30, 31]

13 In his memorandum, Defendant does not dispute the facts we relied upon in the

14 calendar notice. [MIO 1] Defendant continues to argue, however, that the facts in this

15 case are similar to those in Cole and therefore, his conviction for bringing contraband

16 into the jail must be reversed. Defendant contends that, like the defendant in Cole, he

17 made a choice to possess marijuana and like the defendant in Cole he did not enter the

18 jail voluntarily. [MIO 4] Defendant points out that the defendant in Cole knew that

19 by failing to disclose the contraband when presented with the questionnaire that he


                                              3
 1 would be entering the prison with contraband. [MIO 5] Similarly, Defendant argues,

 2 he knew he would be entering the prison with marijuana. [Id.] Defendant’s argument

 3 misses the point; we are not persuaded. See State v. Acosta, No. 29,139, slip op.

 4 (N.M. Ct. App. June 10, 2009) (holding that defendant returning to jail from work

 5 detail and choosing to bring recently obtained contraband in with him is not

 6 compelled to enter the facility as was defendant in Cole, but does so entirely of his

 7 own volition.) The issue is not how a defendant enters the prison, but how the drugs

 8 in his possession enter it.

 9        In Cole, we considered what mens rea supports the actus reus required to

10 satisfy the statute. We held that “a voluntary act requires something more than

11 awareness.” Cole, 2007-NMCA-099, ¶ 10 (internal quotation marks and citation

12 omitted). The circumstances of Cole, where defendant was aware that he possessed

13 the contraband but was compelled by the circumstances of his arrest to bring it into

14 the jail, is a world away from the prisoner, who is aware of his custodial status as he

15 begins his day as a resident in jail, leaves the confines of his cell knowing he is to

16 ultimately return to custody in the facility, and of his own volition picks up

17 contraband along the way with which he intends to return to his incarceration. “[The

18 actus reus] requires an ability to choose which course to take—i.e., an ability to

19 choose whether to commit the act that gives rise to criminal liability.” Id. (internal


                                              4
 1 quotation marks and citation omitted). Further, we distinguished a defendant’s

 2 voluntary act of possessing the marijuana before he was in government custody and

 3 forced to commit his involuntary act of introducing the marijuana into the jail. Id. It

 4 was the fact in that case that the contraband entered the facility with the defendant

 5 because of the government’s compulsion as a result of defendant’s arrest and not his

 6 choice that we reversed the conviction in Cole. Id. ¶¶ 10-11.

 7        In this case, however, Defendant was in prison where he knew the contraband

 8 was prohibited, and left his domicile on work detail. He knew he would return to the

 9 prison afterwards. Defendant saw both the marijuana and the pipe and knew both

10 were prohibited items. He had a choice: Either leave them where they lay, or pick

11 them up, hide them on his person, and bring them into the prison. Defendant chose

12 the latter course, and as such, he ipso facto voluntarily brought the contraband into the

13 prison when he returned after the work detail. See id. ¶ 10 (discussing that if a

14 reasonable juror could find the introduction of contraband into the jail a reasonably

15 foreseeable consequence of possessing it, then the charge should not be dismissed as

16 a matter of law).

17 CONCLUSION

18        We affirm the district court’s decision to deny Defendant’s motion to dismiss

19 as a matter of law. We affirm Defendant’s convictions.


                                               5
1      IT IS SO ORDERED.



2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 _________________________________
6 CYNTHIA A. FRY, Chief Judge



7 _________________________________
8 MICHAEL D. BUSTAMANTE, Judge




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