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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    NO. A-1-CA-36759

 5 ISAIAS SALCIDO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Kea W. Riggs, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellant

12 Bennett J. Baur, Chief Public Defender
13 John Charles Bennett, Assistant Public Defender
14 Santa Fe, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    Defendant Isaias Salcido appeals from his convictions, after a jury trial, of

19 trafficking controlled substances, contrary to NMSA 1978, Section 30-31-20 (2006),
 1 and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)

 2 (2001). In this Court’s notice of proposed disposition, we proposed to summarily

 3 affirm. [CN 1, 10] Defendant filed a memorandum in opposition (MIO) and motion

 4 to amend the docketing statement, which we have duly considered. Remaining

 5 unpersuaded, we deny Defendant’s motion to amend the docketing statement and

 6 affirm.

 7 Pretext and Sufficiency

 8   {2}   Defendant continues to argue pretext and sufficiency, as he did in his docketing

 9 statement. [DS 6-7; MIO 8, 15] With regard to these issues, we note that Defendant

10 has not asserted any new facts, law, or arguments that persuade this Court that our

11 notice of proposed disposition was erroneous. [See id.] See Hennessy v. Duryea,

12 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

13 held that, in summary calendar cases, the burden is on the party opposing the proposed

14 disposition to clearly point out errors in fact or law.”); State v. Mondragon,

15 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a] party

16 responding to a summary calendar notice must come forward and specifically point

17 out errors of law and fact[,]” and the repetition of earlier arguments does not fulfill

18 this requirement), superseded by statute on other grounds as stated in State v. Harris,




                                               2
 1 2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Defendant to our analysis in

 2 our notice of proposed disposition.

 3   {3}   We additionally note that, although Defendant continues to argue that there was

 4 insufficient evidence to support a reasonable jury finding that Defendant intended to

 5 transfer the methamphetamine to another, we reiterate that the evidence—that

 6 Defendant was in possession of a cup with a substance determined to be 21.35 grams

 7 of methamphetamine in it; that he had a digital scale with residue and two baggies

 8 with residue on his person; that amounts of drugs closer to an ounce (28.35 grams)

 9 indicate that it is more likely that the intent is to traffic; and that there was no other

10 user-paraphernalia found in the vehicle [MIO 4-6; CN 6-9]—was sufficient to uphold

11 the conviction. See State v. Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930 (stating that

12 sufficiency review is highly deferential; that we view the evidence in the light most

13 favorable to the State, resolving all conflicts and making all possible inferences in

14 favor of the jury’s verdict; and that we “do not search for inferences supporting a

15 contrary verdict or re-weigh the evidence because this type of analysis would

16 substitute an appellate court’s judgment for that of the jury” (internal quotation marks

17 and citation omitted)); State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226

18 P.3d 641 (stating that “circumstantial evidence alone can amount to substantial

19 evidence” and that “intent is subjective and is almost always inferred from other facts



                                               3
 1 in the case” (alterations, internal quotation marks, and citation omitted)); State v.

 2 Michael S., 1995-NMCA-112, ¶ 7, 120 N.M. 617, 904 P.2d 595 (stating that “[i]ntent

 3 need not be established by direct evidence, but may be inferred from the [defendant]’s

 4 conduct and the surrounding circumstances”).

 5   {4}   Again, it is for the jury to resolve any conflicts in the testimony and determine

 6 weight and credibility. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d

 7 482. We do not re-weigh the evidence, and we may not substitute our judgment for

 8 that of the fact-finder, as long as there is sufficient evidence to support the verdict.

 9 State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156; State v. Mora,

10 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (same), abrogated on other

11 grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.

12 Moreover, to the extent Defendant presented a different version of the facts, the jury

13 was free to reject his version. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438,

14 971 P.2d 829. Indeed, “[w]hen a defendant argues that the evidence and inferences

15 present two equally reasonable hypotheses, one consistent with guilt and another

16 consistent with innocence, our answer is that by its verdict, the jury has necessarily

17 found the hypothesis of guilt more reasonable than the hypothesis of innocence.” State

18 v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393.

19 Motion to Amend: Fundamental Error



                                               4
 1   {5}   Defendant additionally seeks to raise three issues pursuant to his motion to

 2 amend: (a) whether the district court fundamentally erred by not including a definition

 3 of “inference” in the jury instructions; (b) whether his Fourth Amendment to the

 4 United States Constitution rights were violated by the officer asking him for his name

 5 and searching for his identification; and (c) whether his New Mexico Constitutional

 6 rights were violated for the same reason. [MIO 3; see also MIO 12, 15, 19] In order

 7 for this Court to grant a motion to amend the docketing statement, the movant must

 8 meet certain criteria that establishes good cause for our allowance of such amendment.

 9 See State v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91,

10 superceded by rule on other grounds as recognized in State v. Salgado,

11 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; State v. Rael, 1983-NMCA-081,

12 ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. The essential requirements to show good cause

13 for our allowance of an amendment to an appellant’s docketing statement are that “(1)

14 the motion to amend must be timely, (2) the new issue sought to be raised was either

15 (a) properly preserved below or (b) allowed to be raised for the first time on appeal,

16 and (3) the issues raised are viable.” Moore, 1989-NMCA-073, ¶ 42.

17   {6}   Defendant seeks to add these three issues pursuant to the doctrine of

18 fundamental error. “The doctrine of fundamental error applies only under exceptional

19 circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004-



                                              5
 1 NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. It “is to be resorted to in criminal cases

 2 only for the protection of those whose innocence appears indisputabl[e], or open to

 3 such question that it would shock the conscience to permit the conviction to stand.”

 4 Id. ¶ 14 (internal quotation marks and citation omitted).

 5   {7}   Jury Instructions. Defendant first argues that “fundamental error results from

 6 the failure to instruct the jury on the definition of proper and improper inferences.”

 7 [MIO 12] Defendant contends that since lawyers, special masters, and “trial court

 8 judges require guidance on the magnitude of evidence needed to make permissible

 9 inferences,” then “a jury of laypersons needs such a definition even more.” [MIO 13]

10 Defendant additionally asserts that “[a] brief statement that the verdict should not be

11 based on speculation, guess or conjecture, as the charge here instructed, is not a

12 substitute for the definitions given in” the cases cited. [MIO 13 (internal quotation

13 marks and citation omitted)]. We disagree.

14   {8}   Defendant indicates that a permissible inference has been defined as forming

15 “a rational and logical deduction from facts admitted or established by the evidence,”

16 being “linked to a fact in evidence,” and/or being “a conclusion arrived at by a process

17 of reasoning which is a rational and logical deduction from facts admitted or

18 established by the evidence.” [MIO 12-13 (citing State v. Garcia, 2016-NMSC-034,

19 384 P.3d 1076, and Slade, 2014-NMCA-088, ¶ 14 (alterations, internal quotation



                                              6
 1 marks, and citation omitted))]. In the present case, the jury was instructed, in pertinent

 2 part, as follows:

 3         You alone are the judges of the credibility of the witnesses and the
 4         weight to be given to the testimony of each of them. In determining the
 5         credit to be given any witness, you should take into account the witness’s
 6         truthfulness or untruthfulness, ability and opportunity to observe,
 7         memory, manner while testifying, any interest, bias or prejudice the
 8         witness may have and the reasonableness of the witness’s testimony,
 9         considered in the light of all the evidence in the case.

10         ....

11         You are the sole judges of the facts in this case. It is your duty to
12         determine the facts from the evidence produced here in court. Your
13         verdict should not be based on speculation, guess or conjecture. Neither
14         sympathy nor prejudice should influence your verdict. You are to apply
15         the law as stated in these instructions to the facts as you find them, and
16         in this way decide the case.

17 [RP 99-100]

18   {9}   Even assuming the jury was required to be instructed on how to properly draw

19 conclusions from the evidence, in the manner suggested by Defendant, we conclude

20 that, viewing the instructions as a whole, the jury was properly instructed in this

21 case—particularly as it was instructed that its verdict should not be based on

22 speculation, guess, or conjecture. See State v. Montoya, 2003-NMSC-004, ¶ 23, 133

23 N.M. 84, 61 P.3d 793 (stating that we view the jury instructions as a whole); cf.

24 Hourigan v. Cassidy, 2001-NMCA-085, ¶ 33, 131 N.M. 141, 33 P.3d 891 (concluding

25 that a tendered jury instruction that was duplicative and did not provide the guidance


                                               7
 1 that the party contended the jury needed was not error). Indeed, instructing a jury that

 2 it is to determine the facts from the evidence and it is not to base its verdict on

 3 speculation, guess, or conjecture essentially instructs the jury that it should form

 4 rational and logical deductions from the evidence. We see no need to further instruct

 5 the jury to use rationality and logic.

 6   {10}   Defendant has failed to show how the omission of a definition of inference from

 7 the jury instructions presents exceptional circumstances, puts a miscarriage of justice

 8 in danger of occurring, renders Defendant’s innocence indisputable, or shocks our

 9 conscience to let his conviction stand. See Barber, 2004-NMSC-019, ¶¶ 8, 14. We

10 therefore conclude that Defendant has failed to prove fundamental error, and we deem

11 the issue non-viable. See Moore, 1989-NMCA-073, ¶ 42.

12   {11}   Impermissible expansion of stop. Finally, with regard to Defendant’s search and

13 seizure issues, Defendant argues that “[s]ince the encounter necessarily was

14 measurably prolonged by identifying [Defendant] by his name and birth date and

15 searching through booking photos rather than simply viewing his tangible

16 identification, the Fourth Amendment was violated, resulting in fundamental error[,]”

17 and that “[s]ince the courts have emphatically barred officers from questioning

18 passengers during routine traffic stops—unless the passengers own the vehicles in

19 which they are riding—and since the encounter here cannot reasonably be described



                                               8
 1 as consensual or based on reasonable suspicion, Art. II, [Section] 10, was violated,

 2 resulting in fundamental error.” [MIO 15, 19] We address each issue in turn.

 3                Because both the United States and the New Mexico Constitutions
 4          provide overlapping protections against unreasonable searches and
 5          seizures, we apply our interstitial approach. The interstitial approach
 6          requires that we first consider whether the right being asserted is
 7          protected under the federal constitution. If the right is protected by the
 8          federal constitution, then the state constitutional claim is not reached. If
 9          not, we next consider whether the New Mexico Constitution provides
10          broader protection, and we may diverge from federal precedent for three
11          reasons: a flawed federal analysis, structural differences between state
12          and federal government, or distinctive state characteristics.

13 State v. Ketelson, 2011-NMSC-023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (internal

14 quotation marks and citations omitted).

15   {12}   “As we recently explained . . ., a defendant must properly preserve his argument

16 under the state constitution in order for us to consider it on appeal.” Id. Because

17 Defendant did not raise either federal or state constitutional argument below, we

18 consider both for fundamental error. See Rule 12-321(B)(2)(c) NMRA (noting that we

19 may consider, in our discretion, issues that were not preserved but involve

20 fundamental error). [See MIO 4, 15, 19 (stating that the issues are raised as

21 fundamental error)] As indicated above, “fundamental error applies only under

22 exceptional circumstances and only to prevent a miscarriage of justice,” and it “is to

23 be resorted to in criminal cases only for the protection of those whose innocence

24 appears indisputabl[e], or open to such question that it would shock the conscience to


                                                 9
 1 permit the conviction to stand.” Barber, 2004-NMSC-019, ¶¶ 8, 14 (internal quotation

 2 marks and citation omitted).

 3   {13}   First, with regard to Defendant’s contention pursuant to the United States

 4 Constitution, our Supreme Court has clarified the standard when evaluating

 5 expansions of traffic stops under the Fourth Amendment in State v. Leyva, 2011-

 6 NMSC-009, 149 N.M. 435, 250 P.3d 861:

 7          Because the touchstone of any Fourth Amendment analysis is
 8          reasonableness, we must conduct a fact-bound, context-dependent
 9          inquiry in each case. Furthermore, we conclude that it would be
10          inappropriate merely to evaluate the reasonableness of the interval of
11          prolongation in isolation. Instead, the proper inquiry is whether the
12          totality of the circumstances surrounding the stop indicates that the
13          duration of the stop as a whole—including any prolongation due to
14          suspicionless unrelated questioning—was reasonable.

15 Id. ¶ 22 (emphasis, alteration, internal quotation marks, and citation omitted).

16 However, “a de minimis detention caused by questioning after the completion of the

17 traffic stop is not unreasonable under the Fourth Amendment . . . because

18 reasonableness is the touchstone of any Fourth Amendment analysis.” Id. ¶ 20.

19   {14}   In the present case, Defendant contends that he was a passenger in a car that

20 was stopped by an officer. [MIO 15] Defendant apparently told the officer their

21 purported destination, and, after checking the driver’s information, the officer asked

22 Defendant for his identification. [See MIO 2] According to Defendant’s memorandum

23 in opposition, he “spoke with the officer and told him where the car was headed, and


                                              10
 1 offered to show the officer his identification, presumably so the officer would know

 2 [Defendant] was licensed to take the wheel since the driver was not.” [MIO 15-16]

 3 Defendant also contends that the officer said in his affidavit that he asked Defendant

 4 if he had a license on him because no one else in the car had one on them, but the

 5 officer also told Defendant that his license was not necessary and instead asked him

 6 for his name so he could look him up on his system and look through booking

 7 photographs. [MIO 16] The officer confirmed Defendant’s identity and discovered a

 8 pending arrest warrant through this process. [MIO 5, 16]

 9   {15}   Considering the totality of the circumstances, we conclude that the officer’s

10 actions were not so unreasonable as to constitute fundamental error. See Barber, 2004-

11 NMSC-019, ¶¶ 8, 14. Indeed, although Defendant contends that it would have been

12 quicker if the officer had simply taken the offered identification, it is not unreasonable

13 if the officer had wanted to verify that such identification constituted a valid license

14 to drive, particularly since the driver of the vehicle could not produce such a license.

15 [See MIO 2, 16] We further conclude that the officer additionally looking through

16 some booking photographs and determining whether Defendant had an active arrest

17 warrant, while he was verifying that Defendant had a valid license, did not

18 impermissibly expand the scope of the stop to such a level as to constitute




                                               11
 1 fundamental error. See id. We therefore deem Defendant’s Fourth Amendment issue

 2 non-viable. See Moore, 1989-NMCA-073, ¶ 42.

 3   {16}   Second, with regard to Defendant’s contention pursuant to the New Mexico

 4 Constitution, “[i]t is well-established that Article II, Section 10 provides more

 5 protection against unreasonable searches and seizures than the Fourth Amendment.”

 6 Leyva, 2011-NMSC-009, ¶ 51. We explained that we now employ a two-part test “to

 7 determine what questions are reasonably related to the initial justification for the stop

 8 and whether an officer had reasonable suspicion to expand the scope of his or her

 9 search or seizure during an investigatory stop.” Id. ¶ 54 (internal quotation marks and

10 citation omitted). We further noted that “[u]nrelated questions are permissible when

11 supported by independent reasonable suspicion, for reasons of officer safety, or if the

12 interaction has developed into a consensual encounter.” Id. ¶ 55.

13   {17}   In the present case, as indicated above, after the officer stopped the vehicle for

14 apparent speeding, evasive driving, and dim light, he learned that the driver was

15 driving without a valid license. [MIO 2] Accordingly, we decline to hold that the

16 officer’s request for Defendant’s identification and ensuing search in the database was

17 unrelated to the initial reason for the stop or otherwise unsupported by reasonable

18 suspicion to such a degree that it would constitute fundamental error. Indeed, even if

19 the officer’s apparent desire to ascertain whether someone else in the vehicle was able



                                                12
 1 to drive and/or perhaps to assuage his concerns regarding the evasive driving and

 2 speeding were not reasonably related to the initial reason for the stop or otherwise

 3 permitted, we will not conclude that it presents exceptional circumstances, puts a

 4 miscarriage of justice in danger of occurring, renders Defendant’s innocence

 5 indisputable, or shocks our conscience to let his conviction stand. See id. ¶ 54; Barber,

 6 2004-NMSC-019, ¶¶ 8, 14. We therefore conclude that, under these circumstances,

 7 Defendant has failed to prove that the officer’s actions constituted fundamental error

 8 under the New Mexico Constitution, and we deem the issue non-viable. See Barber,

 9 2004-NMSC-019, ¶¶ 8, 14; Moore, 1989-NMCA-073, ¶ 42.

10   {18}   In sum, we are unpersuaded by Defendant’s arguments and consider the three

11 issues he seeks to add by his motion to amend non-viable. See Moore, 1989-NMCA-

12 073, ¶¶ 42-43. We therefore deny his motion to amend the docketing statement and,

13 for the reasons stated in our notice of proposed disposition and herein, affirm

14 Defendant’s convictions.

15          IT IS SO ORDERED.

16                                          ______________________________
17                                          M. MONICA ZAMORA, Judge

18 WE CONCUR:


19 ___________________________
20 STEPHEN G. FRENCH, Judge


                                              13
1 ___________________________
2 EMIL J. KIEHNE, Judge




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