     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                               NO. 32,440

 5 ANTHONY DURAN,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge


 9   Gary K. King, Attorney General
10   Margaret McLean, Assistant Attorney General
11   Olga Serafimova, Assistant Attorney General
12   Daniel F. Haft, Special Assistant Attorney General
13   Santa Fe, NM

14 for Appellant

15 M. Naomi Salazar, Attorney at Law
16 M. Naomi Salazar
17 Albuquerque, NM

18 for Appellee
 1                            MEMORANDUM OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   The State appeals the dismissal without prejudice of the grand jury indictment

 4 charging Anthony Duran (Defendant) with trafficking heroin by possession with intent

 5 to distribute and possession of drug paraphernalia. At issue on appeal is whether the

 6 indictment was defective because the grand jury instructions did not include a

 7 definition of the term “possession” and because the grand jury was given a general

 8 intent instruction, even though the crimes charged were specific intent crimes. As we

 9 conclude that there was no error in the grand jury instructions that warranted dismissal

10 of the indictment, we reverse.

11 I.      BACKGROUND

12   {2}   The State sought a grand jury indictment based on the testimony of a detective

13 who participated in the execution of a search warrant at Defendant’s house. The

14 detective testified that Defendant was found outside of his house with six grams of

15 heroin and $2000 in cash in his pants pockets. Defendant told the officers that, just

16 two hours earlier, he had sold a much larger quantity of heroin. Defendant stated that

17 he uses heroin and also sells it. Defendant explained that he generally buys

18 approximately two ounces of heroin at a time and divides it into grams in order to sell

19 it because he can make a larger profit that way. He told the officers that they would



                                              2
 1 find $7000 in cash and a digital scale in the house. The officers found both the cash

 2 and scale inside the house.

 3   {3}   The State instructed the grand jury that, in order to return a true bill on the

 4 charge of trafficking, the grand jury must find that there was probable cause to believe

 5 Defendant (1) had a Schedule I or II narcotic drug in his possession, (2) knew that it

 6 was a controlled substance, and (3) intended to transfer it to another. The State

 7 instructed the grand jury that, in order to return a true bill on the charge of possession

 8 of drug paraphernalia, the grand jury must find that there was probable cause to

 9 believe that Defendant used, or possessed with intent to use, paraphernalia, to process

10 or prepare a controlled substance.

11   {4}   The State also instructed the grand jury that, in addition to the other elements

12 of these crimes, the grand jury must find probable cause to believe that Defendant

13 acted intentionally when he committed the crimes. The State explained that a person

14 acts intentionally when he purposely does an act that the law declares to be a crime,

15 even if the person does not know that his act is unlawful. The grand jury returned a

16 true bill on both charges.

17   {5}   Defendant moved to dismiss the indictment, arguing that the indictment was

18 defective because the jury had not been given a definition of the term “possession.”

19 The district court granted the motion, and the State appealed. On appeal, we review



                                               3
 1 the district court’s decision de novo. State v. Bradford, 2013-NMCA-071, ¶ 4, 305

 2 P.3d 975.

 3 A.      Definition of “Possession” Was Not Required

 4   {6}   “A prosecutor has a duty to advise the grand jury of the essential elements of

 5 the charges presented.” Id. (internal quotation marks and citation omitted). This

 6 Court recently extended that principle to hold that, when our Supreme Court has

 7 created a uniform jury instruction for an offense, all relevant portions of the

 8 instruction must be provided to the grand jury, including those portions of the

 9 instruction that require definitions of terms. Id. ¶¶ 5-9. In Bradford, we considered

10 the question of whether a grand jury was properly instructed on the elements of the

11 offense of embezzlement when it was not provided with the definitions of the terms

12 “fraudulent intent” and “converted.” Id. ¶ 1. Bradford held that the omission of the

13 definitional sections that are otherwise required by a uniform jury instruction or its use

14 notes renders the indictment defective. Id. ¶ 12.

15   {7}   Applying Bradford to this case, the indictment was defective only if the

16 definition of “possession” was required by UJI 14-3111 NMRA, the uniform jury

17 instruction on trafficking by possession with intent to distribute or its use notes.1



         1
18         Defendant states in his answer brief that he does not argue that an instruction
19 on the definition of possession was required for the charge of possession of drug
20 paraphernalia. Accordingly, we do not address this question.

                                               4
 1 However, UJI 14-3111 only requires that the definition of the term “possession” be

 2 given in certain instances. The text of the basic instruction does not include such a

 3 definition. The use notes provide that “UJI 14-3130, the definition of possession in

 4 controlled substance cases, should be given if possession is in issue.” UJI 14-3111,

 5 Use Note 4 (emphasis added). Although, in one sense, possession is “in issue” in

 6 every case of possession with intent to distribute, since the element must be proven

 7 in order to obtain a conviction. However, this cannot be what the use note means

 8 because this is not what the use note requires. We conclude that our Supreme Court

 9 meant that the definition of possession would only be required where the facts make

10 it unclear whether it was the defendant who possessed the controlled substance, such

11 as in cases where the controlled substance was not on the person of the defendant.

12 See, e.g., State v. Barber, 2004-NMSC-019, ¶¶ 11-12, 135 N.M. 621, 92 P.3d 633

13 (stating that the fact of possession was “in issue” when drugs were found in a motel

14 bathroom to which the defendant and two other people had access, and the defendant

15 stated that the drugs were not his). This is not such a case, and the standard is

16 probable cause for the jury to believe the elements of the offense exist. Here, the

17 heroin was found in the pocket of the pants that Defendant was wearing, which

18 constitutes actual possession of the heroin. See State v. Nevarez, 2010-NMCA-049,

19 ¶ 16, 148 N.M. 820, 242 P.3d 387 (stating that the term “‘[a]ctual possession’ means

20 physical . . . control over property” (alteration, internal quotation marks, and citation

                                               5
 1 omitted)). Under these circumstances, there was no ambiguity about whether

 2 Defendant possessed the heroin that was found on his person, and the definitional

 3 instruction need not have been given.

 4 B.       General Intent Instruction Did Not Render the Indictment Invalid

 5   {8}    In the district court, Defendant also claimed that the indictment should be

 6 dismissed because the jury may have been confused by the general intent instruction

 7 because trafficking heroin by possession with intent to distribute is a specific intent

 8 crime. This Court has previously held, however, that it is not reversible error to

 9 provide a general intent instruction for a specific intent crime when a specific intent

10 instruction is also given. See State v. Stefani, 2006-NMCA-073, ¶¶ 22, 27-29, 139

11 N.M. 719, 137 P.3d 659 (stating that this Court was reviewing the issue for simple

12 reversible error, rather than for fundamental error, and there was no reversible error

13 when a district court gave a general intent instruction in addition to the instructions

14 on conspiracy to commit trafficking and possession of drug paraphernalia, each of

15 which contains an element of specific intent).

16 III.     CONCLUSION

17   {9}    Because the grand jury instructions were proper, we reverse the dismissal of the

18 indictment and remand for further proceedings.

19   {10}   IT IS SO ORDERED.



                                                6
1                               ____________________________________
2                               RODERICK T. KENNEDY, Chief Judge


3 WE CONCUR:



4 _________________________________
5 MICHAEL D. BUSTAMANTE, Judge



6 _________________________________
7 LINDA M. VANZI, Judge




                                  7
