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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. 31,420

 5 KEVIN BROWN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY
 8 John M. Paternoster, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee


14 Alex Chisholm
15 Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION
 1 HANISEE, Judge.

 2   {1}   Defendant was found guilty by a jury of trafficking heroin and conspiracy to

 3 traffic heroin—charges that arose from an incident in which Defendant was alleged

 4 to have passed an envelope containing heroin to another inmate while Defendant was

 5 in the penitentiary. On appeal, Defendant challenges the sufficiency of the evidence

 6 to support the trafficking charge, arguing that the evidence did not support the jury’s

 7 finding that Defendant knew the envelope contained heroin beyond a reasonable

 8 doubt. We hold that sufficient evidence supports Defendant’s conviction and affirm.

 9 DISCUSSION

10 A.      Standard of Review

11   {2}   The parties dispute the applicable standard of review. Defendant contends that

12 because he preserved an objection to the jury instruction for trafficking heroin, we

13 should review for reversible error, and he also asserts that we should apply the

14 sufficiency of the evidence standard. We agree with the State that Defendant does not

15 raise an argument on appeal about the adequacy of the jury instruction, but rather

16 challenges the sufficiency of the evidence. Defendant further argues that when we

17 review for substantial evidence, there is a limitation on the extent to which we may

18 rely on inferences drawn from circumstantial evidence to prove an essential element

19 of the crime. Defendant relies on State v. Quintana in support of his contention that


                                              2
 1 where circumstantial evidence is used to prove an element, “such evidence must point

 2 unerringly to the defendant’s guilt, and must be incapable of explanation by any

 3 reasonable hypothesis of the defendant’s innocence.” 87 N.M. 414, 422, 534 P.2d

 4 1126, 1134 (Ct. App. 1975) (Sutin, J., dissenting) (citing State v. Malouff, 81 N.M.

 5 619, 620, 471 P.2d 189, 190 (Ct. App. 1970). As the Supreme Court later explained,

 6 however, “ ‘incompatible with any rational theory of . . . innocence’ means ‘the

 7 evidence supporting the verdict [must] provide a sufficient basis upon which to infer

 8 guilt beyond a reasonable doubt.’ ” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d

 9 756, 760 (1994) (quoting State v. Vigil, 110 N.M. 254, 256, 794 P.2d 728, 730 (1990)

10 (alterations in original)). What Defendant purports to be a limitation on our review

11 of the sufficiency of circumstantial evidence is not so; it “is really nothing more than

12 an application of the substantial evidence rule.” Vigil, 110 N.M. at 256, 794 P.2d at

13 730 (internal quotation marks and citation omitted); see State v. Chandler, 119 N.M.

14 727, 732, 895 P.2d 249, 254 (Ct. App. 1995) (rejecting the separateness of a

15 circumstantial evidence rule and explaining that having evaluated the circumstantial

16 evidence, “the jury, by its verdict, has necessarily found the hypothesis of guilt more

17 reasonable than any of the theories of innocence advanced by the defendant. Thus,

18 we evaluate whether substantial evidence supports the verdict of guilt beyond a

19 reasonable doubt.” (citation omitted)), holding modified on other grounds by State v.


                                              3
 1 Vargas, 2007-NMCA-006, ¶ 14, 140 N.M. 864, 149 P.3d 961. Accordingly, we apply

 2 our usual standard of review for the sufficiency of the evidence.

 3   {3}   “The test for sufficiency of the evidence is whether substantial evidence of

 4 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

 5 reasonable doubt with respect to every element essential to a conviction.” State v.

 6 Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks

 7 and citation omitted). The reviewing court “view[s] the evidence in the light most

 8 favorable to the guilty verdict, indulging all reasonable inferences, and resolving all

 9 conflicts in the evidence in favor of the verdict.”             State v. Cunningham,

10 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The question before us as a

11 reviewing [c]ourt is not whether we would have had a reasonable doubt [about guilt]

12 but whether it would have been impermissibly unreasonable for a jury to have

13 concluded otherwise.” See State v. Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305,

14 187 P.3d 170. Conversely stated, we ask whether “any rational trier of fact could have

15 found the essential elements of the crime beyond a reasonable doubt.” Cunningham,

16 2000-NMSC-009, ¶ 26 (emphasis, internal quotation marks, and citation omitted).

17 B.      Analysis

18   {4}   In order to prove that Defendant trafficked heroin, the State had to establish the

19 following beyond a reasonable doubt:


                                               4
 1         1.    [D]efendant transferred [h]eroin to another;

 2         2.    [D]efendant knew it was [h]eroin or believed it to be [h]eroin or believed

 3               it to be some drug or other substance the possession of which is

 4               regulated or prohibited by law;

 5         3.    This happened in New Mexico on or about the 15th day of December[]

 6               2008.

 7   {5}   The evidence the State presented to establish Defendant’s knowledge under the

 8 second element was circumstantial, as is often the case “[b]ecause an individual’s

 9 intent is seldom subject to proof by direct evidence[.]”              State v. Nozie,

10 2009-NMSC-018, ¶ 32, 146 N.M. 142, 207 P.3d 1119 (alteration in original) (internal

11 quotation marks and citation omitted). In this regard, the State presented the

12 testimony of Sergeant Thomas from the penitentiary, who was in charge of monitoring

13 the housing and movement of inmates on December 15, 2008, at the time of the

14 incident.

15   {6}   Sergeant Thomas explained the layout of the housing unit in which the incident

16 occurred, stating that there were five large contiguous cells called pods, lettered A

17 through E, that housed between fifty-six to sixty inmates a piece. Each pod was two-

18 storied and separated from the next pod by large walls that have an emergency door.

19 The pods were arranged in an arc circling the control picket, which sat at the center


                                              5
 1 of the housing unit and was occupied by officers who watched the inmates and

 2 contained a computer that controlled the housing unit. The control picket was an

 3 enclosed room that had walls made of concrete from the floor to waist-high and the

 4 rest was made of glass on all sides. The control picket also had a continuous feed

 5 running from the surveillance cameras placed in each pod. Sergeant Thomas further

 6 explained that inmates are not permitted to be around the emergency doors between

 7 pods, that they will be written up for being in the unauthorized area, and that there is

 8 a red box painted on the floor to indicate the prohibited area.

 9   {7}   Sergeant Thomas testified that he happened to be in the control picket at around

10 8:10 a.m. on December 15, 2008, when he saw on the camera feed that Defendant was

11 in the D pod standing at the emergency door in the prohibited area on the bottom tier

12 separating the D and C pods. Sergeant Thomas had the attending officer display the

13 camera feed from the C pod, and was then able to view another individual standing

14 at the other side of the emergency door. Sergeant Thomas testified that it appeared

15 the inmates were conversing through the steel emergency door because their faces

16 were at the crack of the steel door talking into it, and they were turning their heads as

17 if to listen to one another. Sergeant Thomas then watched Defendant bend over at the

18 door and make a hand motion that looked as though he was sliding something under

19 the door. Sergeant Thomas stated that the other inmate, who he later identified as


                                               6
 1 Larry Woolridge, bent down to pick up what Defendant slid through. Upon viewing

 2 this, Sergeant Thomas immediately went into the C pod, which required him to turn

 3 his back on his view of the pod for a few seconds. The package was handed off to

 4 another inmate, and when Sergeant Thomas entered the C pod it was in the hands of

 5 Wes Allen, who handed it to Damien Hambleton when the sergeant hollered at Allen.

 6 Sergeant Thomas then hollered at Hambleton, who walked around a table, dropped the

 7 package on a chair, and walked toward the sergeant. Another inmate was sitting on

 8 the chair and leaned back to conceal the package. Sergeant Thomas retrieved the

 9 package, which he described as paper folded into a kind of make-shift envelope

10 containing eight small pieces of heroin (“BBs”) wrapped in cellophane with the word

11 “giant” written on the outside of the paper package. Sergeant Thomas also explained

12 that this relay between Defendant and the other inmates took place during a

13 predictably busy time period in the penitentiary’s housing unit, when inmates were

14 coming to the doors and leaving their pods to attend scheduled meetings, jobs, and

15 activities.

16   {8}   The State introduced three photographs and two short video clips that were

17 played for the jury and explained by Lieutenant Carrell, who was the lead supervising

18 officer of the housing unit at the time of the incident. One video was recorded in the

19 D pod where Defendant is shown standing at the emergency door, talking and


                                             7
 1 listening through it, bending down, walking away, and then returning to the door. The

 2 other video was recorded in the C pod where Woolridge is seen standing at the

 3 emergency door for several seconds and then bending down, and thereafter is joined

 4 by Allen, and they both walk away from the door. The three photographs contained

 5 in State’s Exhibit 2 are stills from the videotape feed showing (1) Defendant walking

 6 in the middle of the D pod, (2) Defendant at the emergency door separating the D and

 7 C pods, and (3) Woolridge and Allen on the other side of the emergency door

 8 separating the C and D pods. This evidence was consistent with Sergeant Thomas’s

 9 testimony of what he observed.

10   {9}   The State also presented the testimony of Dwayne Austin, the chief of security

11 at the penitentiary. He testified that when he questioned Defendant about the incident,

12 Defendant told Austin that an inmate from the E pod, who Defendant did not know,

13 gave him two small pieces of paper under the emergency door and Defendant walked

14 over to the C pod and slid them under that emergency door. Austin testified that it

15 was unlikely that Defendant would just happen to hear someone at the emergency

16 door to the E pod because you can only hear through the emergency doors if your ear

17 is to the crack of the door and because it was a predictably busy time with high traffic

18 and movement among the inmates. Rather, Austin believed that Defendant had been

19 communicated with through hand signals from another pod or that he previously


                                              8
 1 interacted with other inmates during some scheduled activity. Austin also explained

 2 that inmates would want to know who they are dealing with and coordinate efforts

 3 when transacting in drugs, given the harsh potential punishments involved and the

 4 possibility that another inmate might steal the drugs.

 5   {10}   The defense presented the testimony of Mr. Hambleton and Defendant, who

 6 offered an alternative explanation for the inmates’ actions. Hambleton testified that

 7 he did not know Defendant before Defendant was charged with crimes related to the

 8 drugs, that Defendant had nothing to do with the drugs, that the drugs belonged to

 9 Hambleton, and that the package was in his possession in his pocket since the day

10 before Defendant was charged with possession and conspiracy. Defendant testified

11 that he does not take drugs and does not deal drugs in prison. Defendant stated that

12 he grew up with Woolridge and explained that he was talking to Woolridge through

13 the emergency door about buying a pizza for him and his girlfriend and slid a note

14 under the door asking Woolridge to call Defendant’s girlfriend and to order them

15 pizza with Defendant’s money, because Woolridge had privileges that would permit

16 ordering pizza and Defendant did not.

17   {11}   On appeal, Defendant contends that because he offered a reasonable hypothesis

18 to explain his actions and because there was no evidence to suggest that Defendant

19 knew about the drugs, the State’s circumstantial evidence did not rise to the level of


                                              9
 1 substantial evidence as a matter of law.            We disagree with Defendant’s

 2 characterization of the State’s evidence and his characterization of the jury’s role.

 3 There was plenty of evidence from which the jury could infer that Defendant had

 4 knowledge of the drugs, including the furtiveness of his movements, the coordination

 5 of the inmates’ actions, the time of day that was chosen to pass the drugs, the

 6 desirability of coordinating efforts with known people to avoid getting caught with

 7 drugs or losing the drugs, and the inconsistency in Defendant’s explanations for what

 8 had occurred. It is incorrect to state that the jury must accept any reasonable

 9 explanation offered through direct evidence by the defense where the State’s case is

10 circumstantial. Rather, the jury as fact finder is required to weigh the evidence and

11 determine the credibility of the witnesses; therefore, it is free to reject Defendant’s

12 version of events, even assuming it is a reasonable, alternative explanation. State v.

13 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829; State v. Salas, 1999-

14 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. We also observe that “[a]n appellate

15 court does not evaluate the evidence to determine whether some hypothesis could be

16 designed which is consistent with a finding of innocence.”            State v. Reyes,

17 2002-NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948 (internal quotation marks and

18 citation omitted), abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001,

19 ¶ 36, 267 P.3d 806. Again, “[t]he only test recognized by this court to review the


                                             10
 1 sufficiency of the evidence from a jury trial is one inquiring whether substantial

 2 evidence, either direct or circumstantial in nature, exists to support a verdict of guilty

 3 beyond a reasonable doubt with respect to each essential element of a crime charged.”

 4 State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988), superseded by statute

 5 on other grounds as stated in State v. Triggs, 2012-NMCA-068, 281 P.3d 1256.

 6 CONCLUSION

 7   {12}   Viewed in the light most favorable to the State, we hold that the evidence was

 8 sufficient such that a rational jury could have found the essential elements of

 9 trafficking heroin. See Cunningham, 2000-NMSC-009, ¶ 26. Specifically, the record

10 shows that the State presented enough circumstantial evidence to support an inference

11 of knowledge. As a result, we affirm Defendant’s conviction.

12   {13}   IT IS SO ORDERED.


13                                                  _________________________________
14                                                  J. MILES HANISEE, Judge


15 WE CONCUR:



16 _________________________________
17 LINDA M. VANZI, Judge




                                               11
1 _________________________________
2 M. MONICA ZAMORA, Judge




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