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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. 35,531

 5 ALEXANDER GALLEGOS,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Brett R. Loveless, District Judge


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

11 for Appellee

12   Assed & Associates
13   Ahmad Assed
14   Richard Moran
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant appeals from the district court’s judgment and partially suspended

 3 sentence, entered following a jury trial, convicting him of one count of trafficking

 4 controlled substances (by distribution) (cocaine), and one count of conspiracy to

 5 commit trafficking controlled substances (by distribution) (cocaine). [CN 1-2] This

 6 Court issued a notice proposing summary affirmance. Defendant filed a memorandum

 7 in opposition to this Court’s notice of proposed disposition and a motion to amend his

 8 docketing statement, each of which we have duly considered. Remaining unpersuaded,

 9 we deny the motion to amend, and we affirm.

10   {2}   Defendant raised two issues in his docketing statement: (1) whether the district

11 court erred in admitting certain recorded out-of-court statements and (2) whether the

12 evidence was sufficient to support the guilty verdicts. [DS 5] In his memorandum in

13 opposition, Defendant has moved to amend the docketing statement to add a double

14 jeopardy claim. [MIO 12-16]

15   {3}   With respect to Defendant’s first issue—that the district court erred in admitting

16 the recorded out-of-court statements of a woman named Destiny—we proposed to

17 conclude in our notice of proposed disposition that the district court did not abuse its

18 discretion in admitting the challenged statements as statements of a co-conspirator.

19 [CN 4-5, citing Rule 11-801(D)(2)(e) NMRA (providing that a statement is not


                                               2
 1 hearsay if the statement is offered against a party and is a statement “by the party’s co-

 2 conspirator during and in furtherance of the conspiracy”)] Furthermore, we suggested

 3 that admission of the challenged statements did not violate Defendant’s right to

 4 confrontation. [CN 5-6] Consequently, we proposed to hold that the district court did

 5 not err in admitting the statements over Defendant’s objections. [CN 6] Defendant has

 6 not opposed summary affirmance of this issue, and, in fact, Defendant explicitly

 7 concedes the issue and chose not to further argue it in his memorandum in opposition.

 8 [MIO 2] Accordingly, this issue is deemed abandoned. See State v. Johnson, 1988-

 9 NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (stating that when a case is decided on

10 the summary calendar, an issue is deemed abandoned where a party fails to respond

11 to the proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036,

12 ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary

13 calendar cases, the burden is on the party opposing the proposed disposition to clearly

14 point out errors in fact or law.”).

15   {4}   With respect to the second issue, Defendant continues to argue that the evidence

16 was insufficient to sustain his conviction for trafficking cocaine. [MIO 3, 9-11]

17 Defendant focuses his challenge on the fact that his brother “was the principal actor

18 who attempted to sell cocaine” to undercover detectives, and Defendant contends that

19 his presence during the drug transaction was insufficient proof that he helped,


                                               3
 1 encouraged, or caused his brother to sell cocaine to the undercover officers. [MIO 10-

 2 11] In support, Defendant cites to State v. Phillips, 1971-NMCA-114, ¶ 6, 83 N.M.

 3 5, 487 P.2d 915, which states that “[n]either presence, nor presence with mental

 4 approbation is sufficient to sustain a conviction as an aider or abettor. Presence must

 5 be accompanied by some outward manifestation of expression or approval.”

 6   {5}   In our notice of proposed disposition, we observed that it appeared from the

 7 docketing statement that evidence was presented that: Defendant communicated to a

 8 woman named Destiny that he would sell a pound of cocaine to undercover police

 9 detectives; Destiny served as an intermediary between the undercover detectives and

10 Defendant and his brother in arranging the details of the planned sale of narcotics;

11 Defendant communicated to Destiny that his brother wanted the transaction to happen

12 at his house; Defendant accompanied Destiny to the agreed-upon location to meet the

13 undercover detectives; Defendant and other passengers in a brown Cadillac led the

14 undercover detectives to his brother’s house, while Destiny rode with the detectives;

15 Defendant went inside his brother’s house; a woman named Vanessa—one of the

16 other passengers in the Cadillac—came outside and asked the detectives and Destiny

17 if they were coming inside, to which the detectives responded that they were not;

18 Vanessa went back into the house, and then exited the house with both Defendant and

19 his brother; Defendant began looking up and down the street, which in the detectives’


                                              4
 1 training and experience constituted “counter surveillance” for police activity or

 2 possible robbery activity; Defendant and his brother approached the driver’s side of

 3 the detectives’ vehicle and asked them to come inside the house to do the deal; a

 4 detective replied that he was uncomfortable going into the house with all of his cash;

 5 Defendant’s brother replied that he did not like to do big deals in vehicles; the

 6 detectives persuaded Defendant’s brother to get in the car; Defendant’s brother then

 7 pulled out a large baggy, and—wearing latex gloves—began cutting a brick of cocaine

 8 while telling the detectives about the quality of the cocaine; and Defendant remained

 9 present, but outside the car, while the transaction occurred. [CN 4, 7-8] Based on these

10 facts, which are not specifically contradicted or challenged by the more robust factual

11 recitation in Defendant’s memorandum in opposition, we conclude that a jury could

12 have found beyond a reasonable doubt that Defendant was not merely present during

13 the drug transaction, but that his actions—in particular, his “counter surveillance”

14 during the course of the transaction—indicated “outward manifestation or expression

15 of approval.” Id. Therefore, we remain unpersuaded that the evidence was insufficient

16 to support Defendant’s trafficking conviction. Further, because it does not appear

17 from the memorandum in opposition that Defendant is challenging our proposed

18 affirmance with respect to the sufficiency of the evidence to support his conspiracy




                                              5
 1 conviction, we deem that issue abandoned. See Johnson, 1988-NMCA-029, ¶ 8; cf.

 2 Hennessy, 1998-NMCA-036, ¶ 24.

 3   {6}   In his memorandum in opposition, Defendant has moved to amend the

 4 docketing statement to add a claim that his convictions for trafficking and for

 5 conspiracy to commit trafficking violate double jeopardy. [MIO 3, 12-16] See Rule

 6 12-208(F) NMRA (permitting the amendment of the docketing statement based upon

 7 good cause shown); State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668

 8 P.2d 309 (setting out requirements for a successful motion to amend the docketing

 9 statement). The essential requirements to show good cause for our allowance of an

10 amendment to an appellant’s docketing statement are that (1) the motion be timely,

11 (2) the new issue sought to be raised was either (a) properly preserved below or (b)

12 allowed to be raised for the first time on appeal, and (3) the issues raised are viable.

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

14 other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d

15 730.

16   {7}   In support of his motion to amend, Defendant essentially argues that the

17 prohibition against double jeopardy requires reversal of one of his convictions on the

18 basis of “double-description”; that is, he is asserting that he was punished for the same

19 conduct under multiple statutes. [MIO 13]


                                               6
 1   {8}    We analyze double-description issues using a two-part analysis in which we

 2 consider (1) whether the convictions were premised on unitary conduct, and if so, (2)

 3 whether the Legislature intended to punish the crimes separately. State v. Swick, 2012-

 4 NMSC-018, ¶ 11, 279 P.3d 747. “Conduct is unitary when not sufficiently separated

 5 by time or place, and the object and result or quality and nature of the acts cannot be

 6 distinguished.” State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616.

 7   {9}    In Silvas, our Supreme Court reversed the defendant’s conspiracy to commit

 8 trafficking conviction on the basis of double jeopardy where it was based on the same

 9 illegal act that supported the trafficking conviction. Id. ¶¶ 1, 8-29. The Court stated

10 that “[t]he [s]tate’s legal theory for both crimes rested upon [the d]efendant’s unitary

11 conduct of transferring the drugs from his hand to Ortega’s hand and Ortega

12 transferring the money to [the d]efendant.” Id. ¶ 19. The Court held that “New Mexico

13 law . . . requires evidence of more than just the substantive crime.” Id. ¶ 26. However,

14 the Court also recognized that “[u]nder New Mexico law, courts have upheld separate

15 convictions for conspiracy to commit trafficking and the act of trafficking when the

16 evidence showed more than just the exchange of drugs for money.” Id. ¶ 27.

17   {10}   Here, Defendant contends that his convictions were based on one illegal act, as

18 in Silvas. [MIO 13-14] Specifically, Defendant argues that his actions as an accessory

19 indicate that he was a conspirator and that such factual overlap resulted in his


                                               7
 1 punishment under separate statutes for the same actions. [MIO 13] We are not

 2 convinced.

 3   {11}   We note that the Silvas court emphasized the state’s focus on a single moment

 4 in time—the point at which the narcotics were passed from the defendant’s hands to

 5 Ortega’s hands—as well as the state’s reliance on that moment to establish both the

 6 agreement and the substantive act of trafficking. Id. ¶¶ 19-21. Whereas, in the present

 7 case, the State presented evidence that Defendant communicated with Destiny that he

 8 would sell a pound of cocaine to the undercover police detectives and communicated

 9 the details of the sale, including the location of the sale, to the detectives through

10 Destiny; Defendant accompanied Destiny to the agreed-upon location to meet the

11 undercover detectives; and Defendant and other passengers in a brown Cadillac led

12 the undercover detectives to his brother’s house, while Destiny rode with the

13 detectives. These actions are sufficiently separated by time and place from the

14 Defendant’s later actions at his brother’s home, and the quality and nature of the

15 acts—planning and setting up the sale, in concert with at least Destiny—are

16 sufficiently distinguishable from the “counter surveillance” he undertook during the

17 actual sale conducted by his brother. Therefore, we are not persuaded that the

18 convictions were premised on unitary conduct. See id. ¶ 10. As a result, there is no

19 double jeopardy violation. See Swick, 2012-NMSC-018, ¶ 11. Consequently, this issue


                                              8
1 is not viable and does not satisfy the requirements for the granting of a motion to

2 amend the docketing statement. The motion to amend is denied.

3   {12}   Accordingly, for the reasons stated in this opinion, as well as those provided in

4 our notice of proposed disposition, we affirm.

5   {13}   IT IS SO ORDERED.


6                                                  ________________________________
7                                                  JAMES J. WECHSLER, Judge


8 WE CONCUR:


 9 ________________________________
10 TIMOTHY L. GARCIA, Judge


11 ________________________________
12 J. MILES HANISEE, Judge




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