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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-CA36248

 5 GLORIA GALAVIZ,

 6                  Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Matthew E. Chandler, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    Defendant Gloria Galaviz appeals her jury convictions for one count of
 1 possession of a controlled substance (methamphetamine) and one count of possession

 2 of drug paraphernalia. [RP 116-17, 142-45] We previously issued a notice of proposed

 3 summary disposition in which we proposed to affirm. Defendant has filed a

 4 memorandum in opposition. After due consideration, we remain unpersuaded.

 5   {2}   In her docketing statement, Defendant challenged the sufficiency of the

 6 evidence to support her jury convictions. [DS 3-4; RP 116-17, 142-45] She asserted

 7 that the methamphetamine and drug paraphernalia that were found in the middle

 8 console of the vehicle that she was driving did not belong to her and “could have been

 9 put in the console by someone else, including the two passengers.” [DS 3] Our notice

10 of proposed disposition set forth the relevant facts and the law that we believed

11 controlled. [CN 1-6]

12   {3}   We stated that, for count one, the State was required to prove that Defendant

13 had knowledge of the methamphetamine and that she exercised control over it. [CN

14 4] See State v. Brietag, 1989-NMCA-019, ¶ 11, 108 N.M. 368, 772 P.2d 898

15 (“Constructive possession exists when the defendant has knowledge of the presence

16 of the drug and control over it.”). Additionally, for count two, the State was required

17 to prove that Defendant “had a glass pipe and small plastic bags in her possession.”

18 [CN 4 (quoting RP 104)] See id.

19   {4}   In proposing to conclude that there was sufficient evidence from which the jury


                                              2
 1 could conclude that Defendant had knowledge and control of the methamphetamine,

 2 glass pipe, and small plastic bags, we noted that the pipe and small plastic bag were

 3 found in the middle console of the vehicle that Defendant was driving, and the pipe

 4 and bag each contained a substance that tested positive for methamphetamine. [CN 4]

 5 We further noted that a photograph of the console was admitted into evidence and

 6 showing the pipe near an insurance card with Defendant’s name on it. [CN 4-5] We

 7 suggested that it was reasonable for the jury to infer that Defendant either placed the

 8 pipe and small plastic bag with methamphetamine in the middle console or became

 9 aware of them at some point while in possession of the vehicle. [CN 5] State v.

10 Montoya, 1966-NMSC-224, ¶ 10, 77 N.M. 129, 419 P.2d 970 (stating that

11 “knowledge” is generally circumstantial in nature and inferred from circumstances).

12 In response, Defendant makes two distinct arguments—one related to the

13 methamphetamine and one related to the drug paraphernalia. [MIO 4-9]

14   {5}   With respect to Defendant’s challenge of the sufficiency of the evidence to

15 support    her   conviction    for   methamphetamine,      Defendant     asserts   that

16 “methamphetamine was found in a wallet inside a make-up case somewhere in the car

17 and residue was found in the backseat passenger area where [Defendant’s] two female

18 passengers were seated[,]” and even though these items were in Defendant’s car,

19 “there was no evidence introduced to suggest that she placed the items there or knew


                                              3
 1 of their existence.” [MIO 6] She maintains that the methamphetamine could have

 2 belonged to one or both of the passengers. [MIO 7] However, Defendant’s response

 3 does not address this Court’s proposed conclusion that it was reasonable for the jury

 4 to infer that Defendant either placed the pipe and small plastic bag with

 5 methamphetamine in the middle console or became aware of them at some point while

 6 in possession of the vehicle. [See generally MIO] Therefore, we are not convinced that

 7 our analysis or proposed disposition was incorrect. See Hennessy v. Duryea,

 8 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

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

10 disposition to clearly point out errors in fact or law.”).

11   {6}   With respect to Defendant’s challenge of the sufficiency of the evidence to

12 support her drug paraphernalia conviction, Defendant argues that the State was

13 required to prove beyond a reasonable doubt that drug paraphernalia was on

14 Defendant’s person, because the jury was not given a constructive possession

15 instruction for the possession of drug paraphernalia charge. [MIO 8-9] Although

16 Defendant is correct that the only jury instruction given defining “possession”

17 pertained to “possession of methamphetamine” [RP 103], we are not persuaded by her

18 argument.

19   {7}   In State v. Barber, 2004-NMSC-019, ¶ 1, 135 N.M. 621, 92 P.3d 633, the


                                               4
 1 defendant appealed from his conviction of possession of methamphetamine with intent

 2 to distribute, and our Supreme Court considered “whether the absence of a jury

 3 instruction defining possession constitutes fundamental error and requires a new trial.”

 4 The Court determined that, even though the defendant would have been entitled to a

 5 jury instruction defining possession if trial counsel had requested the instruction, the

 6 trial court’s failure to give the definition did not constitute fundamental error. Id. ¶¶

 7 1, 13-32. Additionally, the Court concluded that the jury instruction given for

 8 possession of methamphetamine with intent to distribute, “even though arguably

 9 ambiguous without defining possession, did not create confusion in the jury that

10 would undermine the reliability of the verdict and the integrity of our judicial system.”

11 Id. ¶ 32.

12   {8}   In the present case, Defendant is not arguing that the trial court’s failure to give

13 the constructive possession instruction constituted fundamental error. [See MIO 8-9]

14 Instead, she is arguing that, in the absence of the constructive possession instruction,

15 the jury was required to find actual possession. [MIO 8-9] On this point, we agree

16 with the analysis set forth in Barber:

17         Even though the jury was not instructed that it must find [the d]efendant
18         had both knowledge and control over the drugs, no distinct possibility
19         exists from the evidence that the jury convicted [the d]efendant without
20         finding all the elements beyond a reasonable doubt. . . . [W]e believe that
21         if the jury misunderstood the meaning of “possession,” it would probably
22         not be because the jury equated “possession” with “mere proximity,”

                                                5
 1          rather it would be because the jury equated “possession” with
 2          “ownership.” Such a misunderstanding actually would have placed a
 3          greater burden on the prosecution, because ownership would be more
 4          difficult to prove than possession alone.

 5 Id. ¶ 26.

 6   {9}    As discussed in our notice of proposed disposition and above, viewing the

 7 evidence in the light most favorable to the State, there was sufficient evidence from

 8 which the jury could conclude that Defendant possessed the glass pipe and small

 9 plastic bags, which contained methamphetamine. [CN 5] See State v. Cunningham,

10 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (“In reviewing the sufficiency

11 of the evidence, we must view the evidence in the light most favorable to the guilty

12 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence

13 in favor of the verdict.”).

14   {10}   In her docketing statement, Defendant asserted that she received ineffective

15 assistance of counsel because trial counsel did not subpoena the two female

16 passengers in the car to testify at trial and ask them whether they placed the

17 methamphetamine and drug paraphernalia in the console. [DS 3-4] We proposed to

18 conclude that Defendant failed to establish ineffective assistance of counsel. [CN 6-7]

19 See State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (setting out the

20 factors for a prima facie case of ineffective assistance).

21   {11}   In response, Defendant’s memorandum in opposition advances no new

                                              6
 1 arguments with respect to this issue. Instead, she “maintains that the passengers’

 2 testimony could have supported her defense that she did not possess either

 3 methamphetamine or paraphernalia, thus supporting an acquittal on both counts.”

 4 [MIO 11 (emphasis added)] See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

 5 N.M. 421, 759 P.2d 1003 (stating that “[a] party responding to a summary calendar

 6 notice must come forward and specifically point out errors of law and fact[,]” and the

 7 repetition of earlier arguments does not fulfill this requirement), superseded by statute

 8 on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.

 9   {12}   Because Defendant has not met her burden to establish ineffective assistance

10 of counsel, her requested relief is denied. This decision does not preclude her from

11 pursuing this claim in a habeas corpus proceeding where a full record can be

12 developed. See State v. Arrendondo, 2012-NMSC-013, ¶ 44, 278 P.3d 517 (raising

13 ineffective assistance claim on direct appeal does not preclude a defendant from

14 subsequently pursuing habeas corpus action during which more facts can be

15 developed).

16   {13}   Accordingly, for the reasons set forth in our notice of proposed disposition and

17 in this opinion, we affirm.

18   {14}   IT IS SO ORDERED.

19                                                  ________________________________
20                                                  TIMOTHY L. GARCIA, Judge

                                                7
1 WE CONCUR:


2 _______________________________
3 J. MILES HANISEE, Judge


4 _______________________________
5 STEPHEN G. FRENCH, Judge




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