                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 21 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SAM SMITH,

                Petitioner-Appellant,

    v.                                                   No. 96-2232
                                                (D.C. No. CIV 94-1295 JC/LFG)
    YMELDA VALDEZ, ATTORNEY                                (D. N.M.)
    GENERAL OF THE STATE OF NEW
    MEXICO,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Michael Burrage, Chief Judge, United States District Court for
the Eastern District of Oklahoma, sitting by designation.
      Petitioner Sam Smith appeals the district court’s order denying his petition

for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner was

convicted by a state court jury of the crime of possession of cocaine, in violation

of the version of N.M. Stat. Ann. § 30-31-23 then in effect. He claims that he

was denied his constitutional right to due process because there was insufficient

evidence to sustain his conviction. He has applied for a certificate of

appealability, as required by 28 U.S.C. § 2253(c). We deny the certificate and

dismiss the appeal.

      A claim based on sufficiency of the evidence is a mixed question of fact

and law to be reviewed de novo on federal habeas. See Maes v. Thomas, 46 F.3d

979, 988 (10th Cir. 1995). Habeas relief will be granted only if a rational trier-

of-fact could not have found that each element of the crime was proved beyond a

reasonable doubt, considering all of the evidence in the light most favorable to

the prosecution. See id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

We do not reweigh conflicting evidence or make credibility determinations. See

Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). We must “accept the

jury’s resolution of the evidence as long as it is within the bounds of reason.”

Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993).

      Here, the facts are not disputed. At the time he was searched during an

unrelated matter, petitioner was carrying a coin-sized plastic bag containing a


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very small amount of cocaine. The baggie did not contain an administrable

amount of cocaine, but it was clearly visible in the baggie and petitioner testified

that he saw it. According to petitioner, he had picked up the baggie from a

parking lot, intending to use it to store his spare watch pins. No watch pins were

found in the baggie. Petitioner also testified that he had used cocaine in the past,

he previously had been convicted of cocaine possession, and he no longer used

cocaine.

      The parties agree that the prosecution was required to establish that

petitioner was in possession of cocaine and he knew or believed the substance

was cocaine or other contraband. Petitioner does not dispute that the amount of

cocaine in the baggie was enough to support his conviction for possession. See

State v. Wood, 875 P.2d 1113, 1116-17 (N.M. Ct. App. 1994) (“any clearly

identifiable amount of a controlled substance is sufficient evidence to support a

conviction for possession of a controlled substance;” usable or measurable

amount not required). Rather, he argues that a trace amount of cocaine cannot be

sufficient to establish his knowledge that the substance was cocaine, absent

corroborating evidence. He maintains that his prior cocaine possession conviction

cannot contribute to a finding of knowledge because it was evidence only of his

propensity to use cocaine. He maintains that the jury impermissibly convicted

him based on evidence that he had a propensity to use cocaine.


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      Knowledge can be established by direct or circumstantial evidence. Cf.

Minner v. Kerby, 30 F.3d 1311, 1315 (10th Cir. 1994) (intent to distribute); see

also Wood, 875 P.2d at 1117. Although New Mexico state law generally

prohibits the introduction of evidence of a defendant’s prior bad acts to show his

propensity to commit a crime, the evidence may be admissible for another

purpose, such as showing knowledge or absence of mistake. See State v.

Woodward, 908 P.d. 231, 237 (N.M. 1995). Therefore, because the evidence of

his prior conviction related to the element of petitioner’s knowledge “in a way

that [did] not merely show his propensity” to possess cocaine, State v.

Niewiadowski, 901 P.2d 779, 782-83 (N.M. Ct. App.), cert. denied, 899 P.2d

1138 (N.M. 1995), the prior conviction properly was considered by the jury as

evidence of knowledge or absence of mistake. We hold that a rational trier of

fact could find each element of the cocaine possession charge proved beyond a

reasonable doubt. Accordingly, petitioner’s application for a certificate of

appealability is denied because he has failed to make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

      APPEAL DISMISSED.

                                                    Entered for the Court


                                                    Michael Burrage
                                                    Chief District Judge


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