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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. 30,918

 5 LORI TRUJILLO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Don Maddox, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Will O’Connell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.

19          Defendant appeals her convictions for possession of cocaine and for trafficking

20 methamphetamine (by possession with intent to distribute). On appeal, Defendant
 1 argues that: (1) fundamental error was committed when the district court failed to

 2 instruct the jury that Defendant’s presence in the vicinity of the drugs or the location

 3 of the drugs is not, by itself, possession; (2) trial counsel provided ineffective

 4 assistance of counsel by failing to tender a jury instruction on the definition of

 5 possession; (3) there was insufficient evidence to support her convictions; and (4) her

 6 sentence violates her right to be free from cruel and unusual punishment. We affirm.

 7 BACKGROUND

 8        This case stems from the search of a home that Defendant shared with several

 9 people. Defendant, her son, and her grandmother lived in the grandmother’s house.

10 On the day of the search at issue, a man had just moved in and had brought all of his

11 belongings. Ironically, Defendant precipitated the search by calling the police to

12 complain that the person who had moved in had stolen property in his possession.

13 Pursuant to her call, agents performed a “knock and talk” at Defendant’s home.

14 Defendant’s son answered the door and let the agents inside. Once inside, the agents

15 observed three or four people that they knew to be associated with narcotics. Agents

16 also observed drug paraphernalia and stolen property.

17        Based on their observations, the agents obtained a search warrant for the home.

18 As a result of the search, agents found drug paraphernalia in Defendant’s bedroom.

19 Agents found a black bag in Defendant’s bedroom closet, containing


                                              2
 1 methamphetamine, cocaine, drug paraphernalia, and credit cards belonging to another

 2 person. Also in Defendant’s bedroom, agents found surveillance equipment that

 3 showed the exterior of the house.

 4        At trial, conflicting evidence was introduced with regard to whether Defendant

 5 knew about the black bag and its contents. Agent Riley testified that, during the

 6 search, Defendant told him that the bedroom where the drugs and paraphernalia were

 7 found was her bedroom, that the black bag containing the drugs was hers, and that she

 8 had placed the credit cards in the bag. Agent Kemp, however, testified that when he

 9 asked Defendant about the drugs and paraphernalia, Defendant said they were not hers

10 and instead belonged to other people who were present in the home at the time.

11 Consistent with her statements to Agent Kemp, at trial, Defendant denied making any

12 admissions to Agent Riley during the search. Defendant denied even being present

13 during the search and having ever seen any of the seized items. Defendant maintained

14 that she had never seen the black bag and its contents, did not know to whom the

15 black bag belonged, and did not know how the bag got into her closet.

16        After hearing the evidence, the jury convicted Defendant of possession of

17 cocaine and possession of methamphetamine with intent to distribute. Defendant now

18 appeals challenging the adequacy of the jury instructions, the effectiveness of her trial

19 counsel, the sufficiency of the evidence, and the constitutionality of her sentence. We


                                               3
 1 address additional facts as necessary in the context of the specific issues as discussed

 2 below.

 3 The Failure to Include a Jury Instruction Defining Possession did not Rise to the
 4 Level of Fundamental Error

 5        Defendant’s submitted jury instruction for possession of cocaine required the

 6 jury to make findings that Defendant had cocaine in her possession and that Defendant

 7 knew it was cocaine. See NMSA 1978, § 30-31-23(D) (2011). Defendant’s submitted

 8 jury instruction for trafficking required the jury to find that Defendant had

 9 methamphetamine in her possession; that Defendant knew it was methamphetamine;

10 and that Defendant intended to transfer it to another. See NMSA 1978, § 30-31-

11 20(A)(3) (2006). Defendant argues for the first time on appeal that the submitted jury

12 instructions were inadequate because the jury should have additionally been given a

13 jury instruction that defines possession.

14        UJI 14-3130 NMRA defining possession states:

15               A person is in possession of a substance when he knows it is on
16        his person or in his presence, and he exercises control over it.

17              Even if the substance is not in his physical presence, he is in
18        possession if he knows where it is, and he exercises control over it.

19              Two or more people can have possession of a substance at the
20        same time.




                                               4
 1                A person’s presence in the vicinity of the substance or his
 2        knowledge of the existence or the location of the substance, is not, by
 3        itself, possession. (Emphasis added.)

 4        Defendant specifically argues that the district court should have instructed the

 5 jury on the portion of UJI 14-3130 emphasized above, and asserts that absent such

 6 instruction “there is a distinct possibility that the jury found [her] guilty because she

 7 was in proximity to the drugs rather than because she exercised dominion and control

 8 over the drugs.” Defendant argues that, without the instruction defining possession,

 9 she might have been convicted just because the drugs and paraphernalia were found

10 in the house in which she lived and shared with others.

11         “The standard of review we apply to jury instructions depends on whether the

12 issue has been preserved.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258,

13 34 P.3d 1134. If the issue has been preserved, we review the instructions for

14 reversible error. Id. If the issue has not been preserved, we review for fundamental

15 error. Id. Here, Defendant acknowledges that she did not tender a requested jury

16 instruction of her own which defined possession or otherwise object to the instructions

17 as given at trial. Thus, we review Defendant’s argument only for fundamental error.

18 Id. (applying a fundamental error standard of review for jury instruction issues that

19 have not been preserved); Rule 12-216(B)(2) NMRA (providing appellate court

20 discretion as an exception to the preservation rule to review questions involving


                                               5
 1 fundamental error). “Error that is fundamental must go to the foundation of the case

 2 or take from the defendant a right which was essential to his defense and which no

 3 court could or ought to permit him to waive.” State v. Reed, 2005-NMSC-031, ¶ 52,

 4 138 N.M. 365, 120 P.3d 447 (internal quotation marks and citation omitted).

 5 Fundamental error power is exercised only to correct injustices that shock the

 6 conscience of the court, a term that has been used in our precedent “both to describe

 7 cases with defendants who are indisputably innocent, and cases in which a mistake in

 8 the process makes a conviction fundamentally unfair notwithstanding the apparent

 9 guilt of the accused.” State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d

10 633.

11        In addressing whether the absence of a jury instruction defining possession

12 constituted fundamental error, we turn to Barber for guidance. Id. ¶¶ 8-19. In Barber,

13 officers found drugs and paraphernalia on top of a toilet in a motel room bathroom.

14 Id. ¶ 3. The defendant, who was also found in the bathroom, claimed he was only in

15 the motel to take a shower. Id. ¶ 6. He admitted that he saw the drugs and knew what

16 they were, but claimed that he did not touch them because they were not his. Id. ¶ 11.

17 The defendant further emphasized that there were four admitted methamphetamine

18 users in and around the motel room, thereby suggesting that the drugs belonged to one

19 or all of them. Id. Whether or not the defendant possessed the drugs or was simply


                                             6
 1 in proximity to them was a vital issue in the case. Id. ¶ 12. Like the present case, the

 2 defendant argued on appeal that a jury instruction defining the difference between

 3 possession and mere proximity was required, but had failed to request such instruction

 4 below. Id. ¶ 7.

 5        In reviewing for fundamental error, Barber relied on the following framework

 6 of analysis: We initially determine whether the defendant would have been entitled

 7 to the definitional jury instruction for possession. Id. ¶ 9. If such an instruction would

 8 have been appropriately given, we then determine whether a reasonable juror would

 9 have been confused or misdirected by the submitted jury instructions. Id. ¶ 19. And

10 if we conclude that a reasonable juror would have been confused or misdirected, we

11 “review the entire record, placing the jury instructions in the context of the individual

12 facts and circumstances of the case, to determine whether the [d]efendant’s conviction

13 was the result of a plain miscarriage of justice. Id. (Baca, J., dissenting) (quoting

14 Benally, 2001-NMSC-033, ¶ 24). Applying this analysis, Barber concluded that a

15 jury instruction defining possession would have been given if sought and that the

16 potential for juror confusion existed from the lack of such instruction. Barber

17 ultimately concluded, however, that there was no reasonable likelihood that the jury

18 had been confused in light of other evidence from which the jury could have inferred

19 that the drugs and paraphernalia belonged to the defendant. And, even assuming that


                                               7
 1 the jury instruction was defectively ambiguous without the definition of possession,

 2 Barber further concluded that the jury instructions as a whole cured the defect because

 3 the jury’s verdict of trafficking methamphetamine necessarily subsumed the elements

 4 of control and knowledge to show possession. Thus, Barber held that the district

 5 court’s failure to sua sponte instruct the jury on the definition of possession did not

 6 constitute fundamental error. Id. ¶ 32.

 7        Barber is controlling in the present case. As an initial matter, it can hardly be

 8 disputed that, had Defendant asked, she would have been entitled to a jury instruction

 9 defining possession. See generally State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M.

10 724, 931 P.2d 69 (“When evidence at trial supports the giving of an instruction on a

11 defendant’s theory of the case, failure to so instruct is reversible error.”). In this

12 regard, Defendant denied having any knowledge of the black bag containing the drugs

13 and paraphernalia, even though it was found in her bedroom closet. The State,

14 conversely, presented evidence through Agent Riley’s testimony where Defendant

15 admitted that the bedroom and black bag belonged to her. In light of these divergent

16 views, possession was at issue and Defendant would have been entitled to the

17 definitional jury instruction for possession had she requested it. See Barber, 2004-

18 NMSC-019, ¶ 12 (concluding that when the vital issue was whether the defendant

19 possessed the drugs or was simply in proximity to them, an instruction defining the


                                              8
 1 difference between possession and mere proximity would have been merited if

 2 requested); see also Use Note 4 to UJI 14-3104 NMRA (stating that the UJI definition

 3 of possession “should be given if possession is in issue”).

 4        Having determined that it would have been error not to define possession for

 5 the jury if requested, we examine next whether a reasonable juror would have been

 6 confused or misdirected by the submitted jury instructions. Because the drugs were

 7 not found in Defendant’s actual possession, the State relied on a theory of constructive

 8 possession to show that Defendant had knowledge of the drugs and exercised control

 9 over them. See Barber, 2004-NMSC-019, ¶ 22 (providing that “[w]hen actual

10 physical control cannot be directly proven, constructive possession is a legal fiction

11 used to expand possession and include those cases where the inference that there has

12 been possession at one time is exceedingly strong” (internal quotation marks and

13 citation omitted)); State v. Phillips, 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d

14 421 (providing that constructive possession exists when a defendant has knowledge

15 of drugs and exercises control over the drugs). As did the defendant in Barber,

16 Defendant argues that the jury may have equated proximity with possession, and that

17 an instruction was needed to inform the jury not to do so. Under these circumstances,

18 as in Barber, we conclude that the potential for juror confusion was present. See

19 2004-NMSC-019, ¶ 22 (recognizing that “[t]he word possession . . . remains one of


                                              9
 1 the most elusive and ambiguous of legal constructs” and that the potential for juror

 2 confusion exists (internal quotation marks and citation omitted)).

 3        While we recognize the potential for juror confusion, we nonetheless conclude

 4 that there is no reasonable likelihood that the jury was actually confused and convicted

 5 Defendant without finding that she had knowledge and control over the drugs. We

 6 note first that as in Barber, apart from Defendant’s proximity to the drugs, other

 7 circumstantial evidence linked Defendant to the drugs. See, e.g., State v. Becerra, 112

 8 N.M. 604, 607, 817 P.2d 1246, 1249 (Ct. App. 1991) (providing that the defendant’s

 9 conduct and actions, as well as circumstantial evidence, may sufficiently prove

10 constructive possession); State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct.

11 App. 1989) (“Where a defendant is not in exclusive possession of the premises on

12 which drugs are found, an inference of constructive possession cannot be drawn

13 unless there are incriminating statements or circumstances tending to support the

14 inference.” (emphasis added.))

15        Specifically, we consider Agent Riley’s testimony that, during the search,

16 Defendant was present and admitted that the bedroom was hers. See, e.g., id. at 370,

17 772 P.2d at 900 (stating that “evidence indicating sole occupancy of a bedroom

18 supports a logical inference of control and knowledge of the room’s contents by the

19 usual occupier” (emphasis, internal quotation marks, and citation omitted)); cf. State


                                              10
 1 v. Maes, 2007-NMCA-089, ¶ 19, 142 N.M. 276, 164 P.3d 975 (rejecting the State’s

 2 theory of constructive possession when, among other factors, the officers found

 3 women’s clothing in the bedroom but could not say it was the defendant’s clothing).

 4 We further consider Agent Riley’s testimony that Defendant told him that the black

 5 bag in the bedroom closet containing the drugs and paraphernalia also belonged to her.

 6 While Defendant did not directly admit to owning the drugs, according to Agent

 7 Riley, she did admit to owning the bag in which the drugs were found, and from this

 8 the jury could have reasonably inferred that Defendant knew of and had control over

 9 the black bag and its contents. See, e.g., State v. Muniz, 110 N.M. 799, 800-02, 800

10 P.2d 734, 735-37 (Ct. App. 1990) (finding that the defendant’s statements provided

11 sufficient inference of constructive possession); see also Brietag, 108 N.M. at 370,

12 772 P.2d at 900 (recognizing that “[w]here drugs are found on premises that a

13 defendant does not exclusively possess, the fact that they are found in close proximity

14 to his personal belongings may be a circumstance sufficient to link him with the

15 possession of those drugs”).

16        Also relevant to both Defendant’s knowledge of the drugs and control over the

17 drugs, we consider Agent Riley’s testimony that Defendant admitted to him that she

18 had placed credit cards belonging to another person in the black bag. Without control

19 over the bag and its contents, Defendant would not have been in a position to place


                                             11
 1 the credit cards in the bag. We lastly consider the evidence that surveillance

 2 equipment was found in Defendant’s bedroom that showed the exterior of the house.

 3 This evidence could have suggested to the jury that Defendant had knowledge of the

 4 illegal items and was taking action to ensure that they were not discovered by any

 5 third parties that could potentially enter the house.

 6        Given the evidence linking Defendant to the seized drugs and paraphernalia, we

 7 are satisfied that there is no reasonable likelihood that the jury was confused and

 8 convicted Defendant based on her proximity alone to the items.

 9        Further, in evaluating the circumstances of the case, we consider also that the

10 submitted instructions did not preclude Defendant from presenting her defense to the

11 jury that her proximity to the drugs alone did not show that the drugs were hers. As

12 Defendant acknowledges, she pursued this defense through her own testimony, cross-

13 examination of the witnesses, and in closing argument. See State v. Sandoval, 2011-

14 NMSC-022, ¶ 29, 150 N.M. 224, 258 P.3d 1016 (among other circumstances of the

15 case, considering that the omissions from the jury instruction did not preclude the

16 defendant from presenting his multiple assailant claim to the jury and concluding that

17 the defendant’s conviction was not a plain miscarriage of justice).

18        Lastly, even if we assume for the sake of argument that the jury instructions

19 were defectively ambiguous without the definition of possession, we would


                                             12
 1 nonetheless conclude that the jury instructions as a whole cured any ambiguity. See

 2 Barber, 2004-NMSC-019, ¶ 29 (evaluating whether the jury instructions as a whole

 3 cured the ambiguity and recognizing that error is not fundamental when the jury could

 4 not have reached its verdict without also finding the element omitted from the

 5 instructions). Here, Defendant was convicted not only for possessing cocaine, but

 6 also for trafficking methamphetamine, thereby requiring the jury to find that

 7 Defendant intended to transfer methamphetamine in her possession to another. As

 8 Barber under similar circumstances concluded, “the jury could not have found that

 9 [the d]efendant intended to transfer the methamphetamine . . . without also finding that

10 [the d]efendant was exercising some degree of control over the drugs.” Id. ¶ 30. And

11 because the cocaine was found in the same bag as the methamphetamine, the

12 underlying reasonable inference of knowledge and control over the methamphetamine

13 also extends to the cocaine.

14        Based on the foregoing discussion, we hold that the absence of the definition

15 of possession from the jury instructions does not leave Defendant’s conviction “open

16 to such question that it would shock the conscience to permit the conviction to stand.”

17 Id. ¶ 14 (internal quotation marks and citation omitted). We conclude that the jury

18 instructions did not undermine the reliability of the verdict and the integrity of our

19 judicial system, and therefore hold that no fundamental error occurred.


                                              13
 1 Ineffective Assistance of Counsel

 2        Defendant argues that she was denied effective assistance of counsel when her

 3 trial counsel failed to tender a jury instruction defining possession. To establish a

 4 claim of ineffective assistance of counsel, the defendant must show (1) that counsel’s

 5 performance fell below that of a reasonably competent attorney, and (2) that the

 6 defendant was prejudiced by the deficient performance. State v. Hester, 1999-NMSC-

 7 020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

 8         As previously discussed, at trial, Defendant relied on a defense that her

 9 proximity to the drugs, by itself, was not enough to show that she possessed the drugs.

10 Consistent with this, defense counsel emphasized that the drugs were not found on her

11 person and that numerous drug users who had access to the black bag were also in the

12 house. Defense counsel advocated this defense to the jury through Defendant’s own

13 testimony, by the examination of witnesses, and during closing argument. Because

14 Defendant’s theory of the case was before the jury, we reject her ineffective assistance

15 claim based on a lack of prejudice. See State v. Barber, 2003-NMCA-053, ¶ 12, 133

16 N.M. 540, 65 P.3d 1095 (concluding that the defendant was not prejudiced by trial

17 counsel’s failure to tender the definition of possession when the defendant’s theory

18 of the case was sufficiently before the jury giving the jury an understanding of the

19 defense), cert. granted and affirmed by Barber, 2004-NMSC-019; see also State v.


                                              14
 1 Plouse, 2003-NMCA-048, ¶ 13, 133 N.M. 495, 64 P.3d 522 (recognizing that “[i]f it

 2 is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

 3 prejudice, . . . that course should be followed” (internal quotation marks and citation

 4 omitted)).

 5 Sufficient Evidence Supports Defendant’s Convictions

 6        Defendant refers to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and

 7 State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), to argue that the evidence

 8 was insufficient to support her convictions. We review the evidence to determine

 9 “whether substantial evidence of either a direct or circumstantial nature exists to

10 support a verdict of guilt beyond a reasonable doubt with respect to every element

11 essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319

12 (1988). Under this standard, “[w]e view the evidence in the light most favorable to

13 supporting the verdict and resolve all conflicts and indulge all inferences in favor of

14 upholding the verdict.” State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332

15 (1993). We do not re-weigh the evidence, nor do we substitute our judgment for that

16 of the fact finder, so long as there is sufficient evidence to support the verdict.

17 Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

18        Defendant’s challenge to her convictions for both possession of cocaine and for

19 trafficking methamphetamine is premised on her position that she did not possess the


                                             15
 1 drugs at issue because she did not even know of their existence. As addressed in

 2 conjunction with the jury instruction issue, while mere proximity to the drugs was not

 3 enough to support an inference of constructive possession, the jury could infer

 4 possession when additional circumstances or incriminating statements link the accused

 5 to the drugs. See Brietag, 108 N.M. at 371, 772 P.2d at 901.           For the reasons

 6 discussed in the jury instruction issue, such circumstances are present in this case.

 7        While Defendant’s defense was premised on a theory that the drugs belonged

 8 to others in the house, the jury was free to reject her version of the events. See State

 9 v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct. App. 1992) (leaving resolution of

10 the conflicts in the testimony and the credibility of witnesses to the jury); State v.

11 Chandler, 119 N.M. 727, 731, 895 P.2d 249, 253 (Ct. App. 1995) (providing that the

12 jury is free to “use their common sense to look through testimony and draw inferences

13 from all the surrounding circumstances” (internal quotation marks and citation

14 omitted)). For example, we acknowledge Defendant’s argument that the fact that the

15 drugs were found in a bag containing credit cards in another person’s name implies

16 that someone other than Defendant possessed the drugs. However, the jury was free

17 to instead rely on Agent Riley’s testimony that Defendant told him she put the cards

18 in the bag, as well as Agent Riley’s testimony that Defendant had stolen credit cards

19 and used them to make fraudulent purchases. The jury reasonably could have relied


                                              16
 1 on the foregoing evidence to conclude that Defendant—rather than the owner of the

 2 stolen cards—had placed the cards in the bag and thus had control over the bag and

 3 its contents. We lastly reject Defendant’s reliance on the “evidence equally consistent

 4 with two inferences” tends to prove neither argument because, by its verdict, the jury

 5 necessarily found the hypothesis of guilt more reasonable than the hypothesis of

 6 innocence.

 7 The District Court’s Imposition of a Ten-Year Sentence of Actual Imprisonment
 8 Did Not Constitute Cruel and Unusual Punishment

 9        Again citing Franklin and Boyer, Defendant argues that her sentence violates

10 the prohibition against cruel and unusual punishment in violation of the Eighth

11 Amendment to the United States Constitution and Article II, Section 13 of the New

12 Mexico Constitution. Upon Defendant’s conviction, the judge suspended Defendant’s

13 sentence and placed her on supervised probation. Defendant subsequently violated

14 her probation because she failed to successfully complete her substance abuse

15 treatment program. As a consequence, the district court revoked Defendant’s

16 probation and sentenced her to the full balance of her remaining sentence for a total

17 sentence of ten years imprisonment. Defendant contends that this constituted cruel

18 and unusual punishment because the “impetus for changing her sentence was merely

19 a failure to complete one particular treatment program” and because the length of the

20 imposed sentence was grossly disproportionate to the crimes.

                                             17
 1        As an initial matter, we agree with the State that Defendant waived this

 2 argument. At the sentencing hearing, defense counsel and the State both asked that

 3 Defendant receive a statutory sentence that was suspended on the condition that she

 4 successfully complete a rehabilitation program. If Defendant believed that imposition

 5 of the statutory sentence upon any probation revocation was unconstitutional, then she

 6 should have objected at the time of initial sentencing rather than waiting until her

 7 probation was subsequently revoked. See generally State v. Herrera, 2004-NMCA-

 8 015, ¶ 9, 135 N.M. 79, 84 P.3d 696 (recognizing that an untimely objection is

 9 tantamount to a waiver of the matter of the objection); State v. Trujillo, 2002-NMSC-

10 005, ¶ 64, 131 N.M. 709, 42 P.3d 814 (stating that a constitutional claim of cruel and

11 unusual punishment is a non-jurisdictional claim that must be preserved for appeal).

12        Moreover, apart from Defendant’s failure to adequately preserve this issue, her

13 sentence does not violate the prohibition against cruel and unusual punishment. As

14 provided by law, once Defendant violated her probation, the district court had

15 authority to re-sentence her and impose the balance of the statutory sentences on both

16 counts. See NMSA 1978, § 66-8-102(T) (2010) (providing that “if an offender’s

17 sentence was suspended or deferred in whole or in part and the offender violates any

18 condition of probation, the court may impose any sentence that the court could have

19 originally imposed and credit shall not be given for time served by the offender on


                                             18
 1 probation” (emphasis added)). Consistent with this authority, when Defendant

 2 violated her probation, the district court re-sentenced her to a total imprisonment term

 3 of ten years. This sentence included the statutorily lawful terms of nine years for the

 4 trafficking conviction, see NMSA 1978, § 30-31-20 (2006), and eighteen months for

 5 the possession of a controlled substance conviction, see NMSA 1978, § 30-31-23(D)

 6 (2005) (amended 2011). The sentences imposed were consistent with the district

 7 court’s sentencing authority. See NMSA 1978, § 31-18-15 (2007). Both terms were

 8 ordered to run concurrently and enhanced by one year pursuant to the habitual

 9 offender statute. See NMSA 1978, § 31-18-17 (2003).

10        In general, a lawful sentence does not constitute cruel and unusual punishment.

11 See State v. Augustus, 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct. App. 1981). “It is the

12 Legislature’s province to set penalties for crimes and only in exceptional

13 circumstances will the court invade this province.” State v. Rueda, 1999-NMCA-033,

14 ¶ 16, 126 N.M. 738, 975 P.2d 351. In arguing such exceptional circumstances are

15 present, Defendant attempts to minimize the impact of her probation violation,

16 asserting that it was premised on small rule violations at the treatment program that

17 were the result of “adjustment problems.” In such instance, Defendant argues, her

18 probation violation was not a proper impetus for imposition of the full sentence upon

19 re-sentencing. We disagree. In doing so, we need not revisit the strength of evidence


                                              19
 1 in support of Defendant’s probation revocation, as Defendant was not sentenced for

 2 her probation violation, but instead for the underlying crimes. See, e.g., State v.

 3 Sanchez, 2001-NMCA-060, ¶ 27, 130 N.M. 602, 28 P.3d 1143 (recognizing that

 4 merely requiring the defendant to serve the original sentence following revocation

 5 does not constitute cruel and unusual punishment where the original sentence was

 6 within statutory limits).

 7        By initially suspending Defendant’s sentence subject to supervised probation,

 8 the district court engaged in an act of clemency that was premised on an assumption

 9 that Defendant could be rehabilitated without serving the suspended sentence. See

10 State v. Lopez, 2007-NMSC-011, ¶ 7, 141 N.M. 293, 154 P.3d 668 (recognizing that

11 a suspended sentence and probation is a matter of favor that provides the defendant

12 with an “opportunity to repent and reform”) (internal quotation marks and citation

13 omitted)), called into doubt on other grounds by State v. Utley, 2008-NMCA-080,

14 ¶¶ 11-12, 144 N.M. 275, 186 P.3d 904. To facilitate Defendant’s rehabilitation, her

15 suspended sentence and probation was largely premised on her agreement to complete

16 the treatment program. In light of her failure to do so and the district court’s

17 imposition of a lawful sentence, we cannot agree that Defendant’s sentence was one

18 of those exceptional cases that are so shocking or so unfair as to constitute cruel and

19 unusual punishment. Cf. In re Ernesto M., Jr., 1996-NMCA-039, ¶ 22, 121 N.M. 562,


                                             20
 1 915 P.2d 318 (stating the test for cruel and unusual punishment to be “[w]hether in

 2 view of contemporary standards of elemental decency, the punishment is of such

 3 disproportionate character to the offense as to shock the general conscience and

 4 violate principles of fundamental fairness” (internal quotation marks and citation

 5 omitted)).

 6 CONCLUSION

 7        For the reasons discussed, we hold that the district court’s failure to sua sponte

 8 instruct the jury on the definition of possession did not constitute fundamental error.

 9 We further reject Defendant’s claim of ineffective assistance of counsel, hold that

10 substantial evidence supports Defendant’s convictions, and hold that her sentence did

11 not violate the prohibition against cruel and unusual punishment. We therefore affirm.

12        IT IS SO ORDERED.



13
14                                          MICHAEL D. BUSTAMANTE, Judge

15 WE CONCUR:



16
17 RODERICK KENNEDY, Chief Judge




                                              21
1
2 J. MILES HANISEE, Judge




                            22
