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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                          NO. 28,949

 5 LANCE JORDAN,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Nancy M. Hewitt, Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant appeals his conviction for possession of methamphetamine, arguing

19 that the evidence is insufficient to support a finding that he knew it was in his car and
 1 exercised control over it. [RP 94-97; DS 3; MIO 1-5] Our notice proposed to affirm.

 2 Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), Defendant has

 3 responded with a memorandum in opposition. [Ct. App. file–top document] We are

 4 not persuaded by the arguments in his memorandum, and affirm.

 5 DISCUSSION

 6        We review the evidence to determine whether any rational jury could find each

 7 element of the offense to be established beyond a reasonable doubt. See State v.

 8 Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992).

 9        The elements of possession of methamphetamine are that Defendant had

10 methamphetamine in his possession, and that he knew it was methamphetamine. See

11 UJI 14-3102 NMRA. [RP 66] A person is in possession of a substance when he

12 knows it is on his person or in his presence, and he exercises control over it. See UJI

13 14-3130 NMRA. [RP 67] Two or more people can have possession of a substance

14 at the same time. [RP 67] The elements of possession of drug paraphernalia are that

15 Defendant used or possessed drug paraphernalia. [RP 68-69]

16        Defendant argues that there is insufficient evidence to establish that he

17 exercised control over the drugs. [MIO 3-5] We disagree. Proof of possession may

18 be established by the conduct of a defendant, and by circumstantial evidence. See

19 State v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct. App. 1983). We


                                              2
 1 hold that the circumstantial evidence is sufficient to support a finding that Defendant

 2 knew about and exercised control over the drugs.

 3          Defendant was driving a car that was stopped for an expired license plate. [DS

 4 2; RP 48] He had an expired license, so the car was going to be towed. [RP 18, 48]

 5 While conducting an inventory search of the car, an officer found some hypodermic

 6 syringes under the driver’s seat. [RP 52] Defendant admitted the syringes were his,

 7 but claimed they were for a medical condition (hepatitis). [DS 2; RP 18, 48, 50] The

 8 methamphetamine was found under the driver’s seat.

 9          This evidence supports findings that Defendant knew about and exercised

10 control over the drugs, and supports the verdict. See State v. Morales, 2002-NMCA-

11 052, ¶ 32, 132 N.M. 146, 45 P.3d 406 (finding that the evidence was sufficient to

12 support a finding of knowledge and control where the defendant was the driver of a

13 car, was in control of the car, and the contraband was under the driver’s side floor

14 mat); State v. Hernandez, 1998-NMCA-082, ¶¶ 9-16, 125 N.M. 661, 964 P.2d 825

15 (holding that the evidence was sufficient to support a finding that the defendant had

16 knowledge that marijuana was hidden in the truck where the defendant was alone in

17 the truck, there was evidence that the truck had been altered, and the defendant had

18 lied).

19          Defendant contends that the evidence is insufficient because his passenger, Ms.


                                               3
 1 Lindsay, told one of the officers that the drugs were hers and that she had placed them

 2 in the car a week earlier. [DS 3; MIO 4-5] She also said that the syringes were hers.

 3 [DS 3] However, she could not state where she placed the drugs or describe the

 4 container. [DS 3; RP 57] Defendant argues that we should accept this “alternate and

 5 credible verison of events,” and that we must not rely on “improper inference,

 6 surmise, or a cynical speculation to fill in gaps” in the State’s proof. [MIO 4] We are

 7 not persuaded by these arguments. Ms. Lindsay’s statements go to the weight of the

 8 evidence, but the jury was not required to accept Defendant’s defense or to accept Ms.

 9 Lindsay’s assertions. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

10 829.

11        The evidence is sufficient to support Defendant’s conviction for possession of

12 methamphetamine. We affirm.

13        IT IS SO ORDERED.



14                                                ________________________________
15                                                CELIA FOY CASTILLO, Judge




                                              4
1 WE CONCUR:



2 ________________________________
3 CYNTHIA A. FRY, Chief Judge



4 ________________________________
5 JAMES J. WECHSLER, Judge




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