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

 2 Opinion Number:

 3 Filing Date: MARCH 2, 2017

 4 NO. 34,165

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 ARMIS BELLO,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Ross C. Sanchez, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Charles J. Gutierrez, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1                                       OPINION

 2 ZAMORA, Judge.

 3   {1}   Defendant Armis Bello appeals from his convictions for trafficking cocaine by

 4 distribution, contrary to NMSA 1978, Section 30-31-20(A)(2) (2006), and trafficking

 5 cocaine by possession with intent to distribute, contrary to Section 30-31-20(A)(3).

 6 Defendant argues that (1) his convictions violate the prohibition against double

 7 jeopardy, (2) the State presented insufficient evidence to sustain his convictions, and

 8 (3) he received ineffective assistance of counsel. We affirm in all respects.

 9 BACKGROUND

10   {2}   On November 11, 2009, an Albuquerque Police Department (APD) undercover

11 narcotics team conducted an undercover operation in an area of the city known to

12 police for narcotics-related activity. Detective David Jaramillo was the case agent for

13 the operation and was the undercover officer responsible for making the narcotic

14 purchases. Detective Jaramillo was dropped off in the targeted area, where he

15 observed a man standing at the corner of an intersection with no apparent purpose and

16 who appeared to be a “flagger” or a person that solicits sales of narcotics. The man

17 was later identified as Ralph Franco.

18   {3}   Detective Jaramillo approached Franco and asked whether Franco was

19 “holding”—which is common street terminology for possessing narcotics for sale.
 1 After Detective Jaramillo indicated that he was looking for crack cocaine, Franco told

 2 him that he did not have any but that he could take Detective Jaramillo to another

 3 location to make a purchase. Detective Jaramillo followed Franco on foot to a parking

 4 lot a few blocks away. Once they arrived at the parking lot, Franco identified

 5 Defendant as the person selling the crack cocaine. Detective Jaramillo gave Franco

 6 a $20 bill and watched as Franco approached Defendant and gave him the money. In

 7 exchange, Defendant gave Franco an unknown substance. Franco returned to

 8 Detective Jaramillo and handed him a clear cellophane package containing what

 9 appeared to be a small rock of crack cocaine.

10   {4}   According to Detective Jaramillo, the rock Franco gave him was very small,

11 “way under the value” of the money exchanged. Staying “in role” Detective Jaramillo

12 questioned Franco about being shortchanged, and then he approached Defendant

13 directly. Defendant brushed Detective Jaramillo’s complaint off and told him that the

14 small rock was all he was getting. Detective Jaramillo asked Defendant if he had any

15 more to sell, and Defendant indicated that he did. Detective Jaramillo bought a

16 second rock from Defendant for ten dollars. As he left the parking lot, Detective

17 Jaramillo gave his team the bust signal. Defendant, Franco, and a third subject

18 identified only as Aguilar, were arrested.




                                                2
 1   {5}   The two rocks Detective Jaramillo purchased were labeled and tagged into

 2 APD evidence. Both substances were tested by the APD crime lab and were

 3 positively identified as cocaine. Defendant was indicted for trafficking cocaine by

 4 distribution, conspiracy to commit trafficking, trafficking cocaine by possession with

 5 intent to distribute, and tampering with evidence. Defendant was convicted of

 6 trafficking cocaine by distribution and trafficking cocaine by possession with intent

 7 to distribute.

 8 DISCUSSION

 9 Double Jeopardy

10   {6}   Defendant contends that his convictions for trafficking cocaine by distribution

11 and possession of cocaine with intent to distribute violate the prohibition against

12 double jeopardy. “A double jeopardy challenge is a constitutional question of law[,]

13 which we review de novo.” State v. Swick (Swick II), 2012-NMSC-018, ¶ 10, 279

14 P.3d 747. “The Fifth Amendment of the United States Constitution[,] . . . made

15 applicable to New Mexico by the Fourteenth Amendment[,]” prohibits double

16 jeopardy and “functions in part to protect a criminal defendant against multiple

17 punishments for the same offense.” Id. (internal quotation marks and citation

18 omitted). Double jeopardy cases involving multiple punishments are classified as

19 either double description cases, “where the same conduct results in multiple


                                              3
 1 convictions under different statutes[,]” or unit of prosecution cases, “where a

 2 defendant challenges multiple convictions under the same statute.” Id.

 3   {7}   In the present case, both parties assert that Defendant’s convictions under

 4 Subsection (A)(2) (distribution) and Subsection (A)(3) (possession with intent to

 5 distribute) implicate a double description analysis. Defendant relies on this Court’s

 6 decision in State v. Swick (Swick I), 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462,

 7 aff’d in part, rev’d in part by Swick II, 2012-NMSC-018. In Swick I, the defendant

 8 illegally entered the victims’ home, and once inside, beat and stabbed the victims

 9 before taking $14 and the victims’ vehicle. Swick I, 2010-NMCA-098, ¶ 3. The

10 defendant was convicted of one count of second degree murder, two counts of

11 attempted murder, two counts of aggravated battery with a deadly weapon, two counts

12 of aggravated burglary by battery, one count of aggravated burglary with a deadly

13 weapon, two counts of armed robbery, two counts of conspiracy, and unlawful taking

14 of a motor vehicle. Id. ¶ 1.

15   {8}   On appeal, the defendant argued, among other things, that his convictions for

16 aggravated burglary involving a deadly weapon, contrary to Subsection (B) of NMSA

17 1978, Section 30-16-4 (1963), and aggravated burglary involving battery, contrary

18 to Subsection (C) of the same statute, violated his double jeopardy protections. See

19 Swick I, 2010-NMCA-098, ¶ 26. This Court stated, “[w]hen convictions under


                                             4
 1 separate subsections of a single statute are at issue, we apply the double[]description

 2 analysis.” Id. ¶ 27. Applying a double description analysis to the facts of the case, we

 3 determined that the convictions did not “offend double jeopardy principles.” Id.

 4 ¶¶ 28-29.

 5   {9}   In Swick II, the New Mexico Supreme Court granted certiorari to address a

 6 number of issues, including whether the defendant’s convictions under Section 30-16-

 7 4 violated double jeopardy.1 See Swick II, 2012-NMSC-018, ¶¶ 6, 43-44. The

 8 Supreme Court applied a unit of prosecution analysis since the two convictions were

 9 under the same statute. Id. ¶ 33 (stating that “[w]e apply a unit[]of[]prosecution

10 analysis because we are examining multiple convictions under the same statute”). The

11 Supreme Court held that the two aggravated burglary convictions did violate double

12 jeopardy. Id. ¶ 44. The Supreme Court did not offer an explanation or directly address


13         1
             There is a factual discrepancy between Swick I and Swick II that in turn
14   generates a discrepancy in the applicable subsection of Section 30-16-4 to the
15   defendant’s aggravated burglary (deadly weapon) conviction. Our analysis of Section
16   30-16-4(B) in Swick I was based on the defendant “arming himself with a knife once
17   inside” the victims’ home. Swick I, 2010-NMCA-098, ¶ 24; see § 30-16-4(B)
18   (“Aggravated burglary consists of the unauthorized entry . . . with intent to commit
19   any felony or theft therein and the person . . . : after entering, arms himself with a
20   deadly weapon[.]”). In Swick II, the Supreme Court’s analysis of Section 30-16-4(A)
21   was based on the defendant’s unauthorized entry into the victims’ home armed with
22   a knife. Swick II, 2012-NMSC-018, ¶¶ 35, 43; see § 30-16-4(A) (“Aggravated
23   burglary consists of the unauthorized entry . . . with intent to commit any felony or
24   theft therein and the person . . . : is armed with a deadly weapon[.]”). Nonetheless, the
25   pertinence of Swick I and Swick II is the double jeopardy analysis for more than one
26   conviction based on different subsections of one statute.

                                                5
 1 the double description analysis applied by this Court in Swick I. For its unit of

 2 prosecution standard the Supreme Court relied on State v. Gallegos, 2011-NMSC-

 3 027, ¶ 31, 149 N.M. 704, 254 P.3d 655. Gallegos involved three convictions under

 4 the same subsection of the conspiracy statute. Id. Thus, it appears that double

 5 jeopardy claims involving multiple convictions under different statutes are to be

 6 analyzed the same way as double jeopardy claims based on multiple violations of

 7 different subsections under one statute—using the unit of prosecution standard

 8 analysis. See Swick II, 2012-NMSC-018, ¶ 10.

 9   {10}   We follow the approach taken by our Supreme Court in Swick II and apply a

10 unit of prosecution analysis to Defendant’s double jeopardy claim even though, like

11 the subsections of the burglary statute in Swick II, the subsections of the trafficking

12 statute have different elements. See Aguilera v. Palm Harbor Homes, Inc., 2002-

13 NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (recognizing that the Court of Appeals

14 is bound by Supreme Court precedent).

15   {11}   “In unit of prosecution cases, the defendant is charged with multiple violations

16 of a single statute based upon acts that may or may not be considered a single course

17 of conduct.” State v. Sena, 2016-NMCA-062, ¶ 8, 376 P.3d 887. To determine the

18 correct unit of prosecution, we consider “whether the [L]egislature intended

19 punishment for the entire course of conduct or for each discrete act.” Swafford v.


                                                6
 1 State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. First, courts look to the

 2 language of the statute to determine if the Legislature has defined the unit of

 3 prosecution. Swick II, 2012-NMSC-018, ¶ 33. If so, the inquiry is complete and

 4 proceeds no further. Id. Where the unit of prosecution is not clearly defined in the

 5 language of the statute, courts proceed to analyze “whether a defendant’s acts are

 6 separated by sufficient indicia of distinctness to justify multiple punishments.”

 7 Gallegos, 2011-NMSC-027, ¶ 31 (internal quotation marks and citation omitted).

 8   {12}   In this case, we do not reach the second part of the test because we conclude

 9 that the Legislature defined the unit of prosecution to be one transfer of a controlled

10 substance. See Swick II, 2012-NMSC-018, ¶ 33 (concluding that for Section 30-16-

11 4(A) and (C) the Legislature defined the unit of prosecution to be an unlawful entry

12 with intent to commit a felony therein). Section 30-31-20(A) provides in pertinent

13 part: “[a]s used in the Controlled Substances Act, ‘traffic’ means the: (1) manufacture

14 of a controlled substance . . . ; (2) distribution, sale, barter or giving away of . . . a

15 controlled substance . . .; or (3) possession [of a controlled substance] with intent to

16 distribute.” Here, Defendant was convicted of one count each of trafficking by

17 distribution and trafficking by possession with intent to distribute. As used in the

18 Controlled Substances Act, to “ ‘distribute’ means to deliver” and to “ ‘deliver’ means




                                               7
 1 the actual, constructive or attempted transfer [of a controlled substance] from one

 2 person to another.” NMSA 1978, § 30-31-2(G), (J) (2009).

 3   {13}   In State v. Borja-Guzman, this Court noted that the “various means of

 4 trafficking and the broad definition of deliver evinces a legislative intent to authorize

 5 prosecution and punishment for each separate transfer of a controlled substance.”

 6 1996-NMCA-025, ¶ 13, 121 N.M. 401, 912 P.2d 277. In Borja-Guzman, the

 7 defendant gave undercover agents a sample of methamphetamine and a sample of

 8 heroin. Id. ¶ 2. Approximately four hours later, the defendant met undercover agents

 9 in the same location and sold them quantities of the same substances. Id. ¶¶ 2-3. The

10 defendant was convicted of multiple trafficking offenses. Id. ¶ 4. He challenged the

11 convictions on double jeopardy grounds, arguing that the distribution of a sample of

12 a controlled substance and the subsequent sale of the same substance at the same

13 place and to the same person or persons, constituted only one transfer. Id. ¶ 14. This

14 Court rejected that argument holding that “the [L]egislature clearly intended, in its

15 enactment of Section 30-31-20 criminalizing drug trafficking, to authorize separate

16 prosecution and punishment for each individual transfer or delivery under the

17 circumstances where the transfer is not contemporaneous.” Id. ¶ 26.

18   {14}   In the present case, Defendant’s convictions arose from two separate transfers

19 of a controlled substance. The first transfer occurred when Detective Jaramillo


                                               8
 1 purchased the first rock cocaine from Defendant through Franco. The second transfer

 2 occurred moments later when Detective Jaramillo purchased the second rock cocaine

 3 from Defendant directly. While the two sales occurred within a short period of time,

 4 they did not occur contemporaneously and fall within the Legislature’s authorization

 5 for separate punishment. See id.

 6   {15}   Defendant argues that the two purchases were part of one ongoing transaction

 7 since the second purchase would not have occurred, but for Detective Jaramillo’s

 8 dissatisfaction with the first purchase. We disagree. Section 30-31-20(A)(2) defines

 9 the unit of prosecution as one controlled substance transfer. Here, there were two

10 distinct exchanges between Defendant and Detective Jaramillo. In each exchange,

11 Defendant transferred a distinct quantity of cocaine to Detective Jaramillo in

12 exchange for a distinct sum of money. The reason for the second purchase is not

13 germane to our analysis. We conclude that Defendant’s convictions under Section 30-

14 31-20(A)(2) and (3) do not violate double jeopardy.

15 Sufficiency of the Evidence

16   {16}   Defendant challenges the sufficiency of the evidence to support both

17 trafficking convictions. Defendant asserts that possession of cocaine is a required

18 element of both trafficking offenses with which he is charged, and he claims that the

19 evidence was insufficient to establish possession because other than Detective


                                              9
 1 Jaramillo’s testimony, the State did not present any evidence that he possessed

 2 cocaine. We are unpersuaded.

 3   {17}   “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 Torrez, 2013-NMSC-034, ¶ 40, 305 P.3d 944 (internal quotation marks and citation

 7 omitted). Our Supreme Court has expressly established a two-step process for

 8 applying this test. State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. First we

 9 must “draw every reasonable inference in favor of the jury’s verdict.” Id. Then we

10 “evaluate whether the evidence, so viewed, supports the verdict beyond a reasonable

11 doubt.” Id.

12   {18}   In order to find Defendant guilty of trafficking cocaine by possession with

13 intent to distribute, the State had to prove beyond a reasonable doubt that on or about

14 November 11, 2009, Defendant had cocaine in his possession, knowing it was

15 cocaine, or believing it to be some drug or other substance the possession of which

16 is regulated or prohibited by law, and that Defendant intended to transfer it to

17 another. With regard to this charge, Detective Jaramillo testified that Franco agreed

18 to take him to a location where he could purchase crack cocaine. Franco identified

19 Defendant as the person selling the crack cocaine. Detective Jaramillo gave Franco


                                             10
 1 a $20 bill and watched as Defendant removed an unknown substance from his mouth

 2 and gave it to Franco in exchange for the buy money. Franco returned and gave

 3 Detective Jaramillo a package containing a small rock, which later tested positive as

 4 cocaine. From this testimony, a jury could reasonably infer that the unknown

 5 substance Defendant gave to Franco in exchange for the buy money was the same

 6 rock of cocaine that Franco gave to Detective Jaramillo. In other words, a jury could

 7 reasonably infer that Defendant was in possession of the first rock of cocaine and

 8 intended to transfer it to Detective Jaramillo through Franco.

 9   {19}   The jury instruction on trafficking by distribution provided that, in order to find

10 Defendant guilty of trafficking cocaine by distribution, the State had to prove beyond

11 a reasonable doubt that on or about November 11, 2009, Defendant transferred

12 cocaine to another, knowing that it was cocaine, or believing it to be some drug or

13 other substance the possession of which is regulated or prohibited by law. Detective

14 Jaramillo testified that after Defendant brushed off his complaints about the first

15 purchase, Detective Jaramillo asked if Defendant had more to sell, and Defendant

16 confirmed that he did. Defendant sold Detective Jaramillo a second rock for $10,

17 removing the package from his mouth, exchanging it for a $20 bill and giving

18 Detective Jaramillo $10 in change. Based on this testimony, a jury could reasonably

19 infer that Defendant transferred cocaine directly to Detective Jaramillo.


                                                11
 1   {20}   Drawing all reasonable inferences from the evidence in favor of the verdict, as

 2 we must, we conclude that the evidence is sufficient to support Defendant’s

 3 convictions for trafficking by distribution and trafficking with intent to distribute.

 4 Ineffective Assistance of Counsel

 5   {21}   Defendant asserts that he received ineffective assistance of counsel because his

 6 attorney failed to call key defense witnesses. “We review claims of ineffective

 7 assistance of counsel de novo.” State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M.

 8 719, 204 P.3d 44.

 9   {22}   “The Sixth Amendment to the United States Constitution, applicable to the

10 states through the Fourteenth Amendment, guarantees . . . the right to the effective

11 assistance of counsel.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179,

12 21 P.3d 1032 (internal quotation marks and citation omitted). “When an ineffective

13 assistance claim is first raised on direct appeal, [the appellate courts] evaluate the

14 facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M.

15 657, 54 P.3d 61. “A prima facie case of ineffective assistance is made by showing that

16 defense counsel’s performance fell below the standard of a reasonably competent

17 attorney and, due to the deficient performance, the defense was prejudiced.”

18 Patterson, 2001-NMSC-013, ¶ 17 (internal quotation marks and citation omitted). “A

19 prima facie case for ineffective assistance of counsel is not made if there is a


                                               12
 1 plausible, rational strategy or tactic to explain the counsel’s conduct.” Lytle v. Jordan,

 2 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and

 3 citation omitted).

 4   {23}   As to the first prong, “[d]efense counsel’s performance is deficient if it falls

 5 below an objective standard of reasonableness[,]” usually judged as an action

 6 contrary to “that of a reasonably competent attorney.” Dylan J., 2009-NMCA-027,

 7 ¶ 37. Our review of counsel’s performance is “highly deferential” in that counsel is

 8 “strongly presumed to have rendered adequate assistance and made all significant

 9 decisions in the exercise of reasonable professional judgment.” Id. (internal quotation

10 marks and citation omitted). Therefore, a defendant “must overcome the presumption

11 that, under the circumstances, the challenged action might be considered sound trial

12 strategy.” State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168

13 (internal quotation marks and citation omitted). “If there is a plausible, rational

14 strategy or tactic to explain counsel’s conduct, a prima facie case for ineffective

15 assistance is not made.” Dylan J., 2009-NMCA-027, ¶ 39.

16   {24}   As to the second prong, “[a] defense is prejudiced if, as a result of the deficient

17 performance, there was a reasonable probability that . . . the result of the trial would

18 have been different.” Id. ¶ 38 (omission in original) (internal quotation marks and

19 citation omitted). “A reasonable probability is one that is sufficient to undermine


                                                13
 1 confidence in the outcome.” Id. (internal quotation marks and citation omitted). The

 2 deficient performance “must represent so serious a failure of the adversarial process

 3 that it undermines judicial confidence in the accuracy and reliability of the outcome.”

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

 5   {25}   Defendant claims ineffective assistance of counsel on the grounds that his

 6 attorney did not call Franco and Aguilar as witnesses at trial. Defendant asserts that

 7 the men were necessary defense witnesses whose testimony would likely have

 8 exculpated him. However, Defendant does not point to any facts in the record that

 9 support this claim. Thus, Defendant has not made a prima facie showing of

10 ineffective assistance of counsel. However, “this decision does not preclude [the

11 d]efendant from pursuing habeas corpus proceedings on this issue should he be able

12 to garner evidence to support his claims.” State v. Bernal, 2006-NMSC-050, ¶ 36, 140

13 N.M. 644, 146 P.3d 289.

14 CONCLUSION

15   {26}   For the foregoing reasons, Defendant’s convictions are affirmed.

16   {27}   IT IS SO ORDERED.


17
18                                         M. MONICA ZAMORA, Judge




                                             14
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge


4
5 STEPHEN G. FRENCH, Judge




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