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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                 NO. 28,485

 5 QUINN ANTHONY RANSOM,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Denise Barela Shepherd, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Corey J. Thompson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                              MEMORANDUM OPINION

17 FRY, Chief Judge.

18        Defendant appeals from his convictions for possession of drug paraphernalia,

19 possession of cocaine, and tampering with evidence. In this Court’s first notice of

20 proposed summary disposition, we proposed to reverse, based on the facts as

21 described in Defendant’s docketing statement. The State timely responded with a
 1 memorandum in opposition to our proposed disposition and indicated that its review

 2 of the transcript showed that the facts were not as Defendant had described them.

 3 Based on the State’s recitation of the facts, this Court issued a second notice of

 4 proposed summary disposition, in which we proposed to affirm. Defendant has timely

 5 responded with a memorandum in opposition to our second proposed summary

 6 disposition. In his memorandum, Defendant does not dispute the facts as described

 7 by the State, and instead, without discussing the State’s recitation of the facts or

 8 indicating whether Defendant has also reviewed the transcript, continues to argue that

 9 reversal is appropriate under the facts provided in Defendant’s docketing statement.

10 [Def.’s MIO 3 n.1] Defendant also seeks to amend the docketing statement to add an

11 additional issue. Because Defendant’s motion to amend does not raise a viable issue,

12 we deny the motion. And as Defendant has not controverted the facts as described by

13 the State, we rely on those facts to hold that summary affirmance is appropriate.

14 Defendant’s Initial Encounter With the Police

15        Defendant argues that the evidence obtained by the police should have been

16 suppressed as the fruit of his illegal detention. [DS 7-9] In our first notice, we

17 indicated that the fact that the two officers stood on either side of Defendant and

18 poured out his beer immediately upon approaching him suggested that a reasonable


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 1 person would not feel free to leave under the circumstances. See State v. Patterson,

 2 2006-NMCA-037, ¶ 18, 139 N.M. 322, 131 P.3d 1286 (indicating that an encounter

 3 with the police is an investigatory detention rather than a consensual encounter if a

 4 reasonable person would not feel free to terminate the encounter, given the totality of

 5 the circumstances). Based on the State’s presentation of the facts, however, we now

 6 hold that the initial encounter between Defendant and the police was consensual, such

 7 that Defendant’s Fourth Amendment rights were not implicated.

 8        The New Mexico Supreme Court has recognized that a reasonable person would

 9 not feel free to terminate an encounter with police under certain circumstances, such

10 as when the person is confronted with “the threatening presence of several officers,

11 the display of a weapon by an officer, some physical touching of the [suspect], . . . or

12 the use of language or tone of voice indicating that compliance with the officer’s

13 request might be compelled.” State v. Jason L., 2000-NMSC-018, ¶ 16, 129 N.M.

14 119, 2 P.3d 856 (internal quotation marks and citation omitted). None of these

15 circumstances was present. Although the officers stood on either side of Defendant

16 when they began to speak with him, evidence was presented that there were at least

17 five feet between each officer and Defendant and that the officers were not in the way

18 of one of the two sets of stairs leading to the ground floor. [State’s MIO 5]


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 1 Furthermore, it appears that there was evidence presented that the officers did not pour

 2 out Defendant’s beer until after Defendant had been arrested for trespassing. [State’s

 3 MIO 6] Accordingly, we conclude that the fact that the officers emptied Defendant’s

 4 beer is not relevant to the question of whether the initial encounter between Defendant

 5 and the officers was a consensual encounter or a seizure. In the absence of any other

 6 evidence that the officers’ conduct suggested that Defendant was required to remain

 7 where he was and answer the officers’ questions, we do not believe that the fact that

 8 two armed, uniformed officers approached Defendant and stood five feet from him

 9 while questioning him was the sort of display of authority that constitutes a seizure.

10 See State v. Talley, 2008-NMCA-148, ¶¶ 9-12, 145 N.M. 127, 194 P.3d 742 (holding

11 that the presence of two officers questioning a defendant does not alone constitute a

12 “threatening presence” that transforms an otherwise consensual encounter into a

13 seizure), cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488. We

14 therefore hold that the district court did not err in denying Defendant’s motion to

15 suppress.

16 The Claimed Miranda Violation

17        Defendant contends that his responses to police questioning regarding his right

18 to be on the property should have been excluded since these statements were obtained


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 1 in violation of the Fifth Amendment as protected by Miranda v. Arizona, 384 U.S. 436

 2 (1966). These statements were obtained prior to Defendant’s formal arrest, while the

 3 officers questioned Defendant. [DS 4, 9] Defendant argues that because no

 4 reasonable person would have felt free to leave under the circumstances, he was

 5 entitled to Miranda warnings. [DS 9]

 6        We hold that Defendant was not in custody so as to trigger his rights under the

 7 Fifth Amendment. A person is in custody for Fifth Amendment purposes if he has

 8 been subject to a formal arrest or “restraint on freedom of movement of the degree

 9 associated with a formal arrest.” See State v. Wilson, 2007-NMCA-111, ¶ 14, 142

10 N.M. 737, 169 P.3d 1184 (internal quotation marks and citation omitted). Our

11 conclusion that the facts do not rise to the level of an investigatory detention for

12 Fourth Amendment purposes necessarily require the conclusion that Defendant was

13 not in custody for Fifth Amendment purposes. Prior to Defendant’s formal arrest, he

14 was questioned by the police only briefly, in an area visible to the public and

15 accessible to those living in the apartment complex, in early evening—when it still

16 would have been light out in August. [DS 3-5] The situation was not overly police-

17 dominated, as there were only two officers. [DS 3-5] See State v. Javier M., 2001-

18 NMSC-030, ¶¶ 21-23, 131 N.M. 1, 33 P.3d 1 (considering whether the defendant was


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 1 isolated by the police, the length of the detention, and whether the situation was

 2 police-dominated, in determining whether the defendant was in custody for purposes

 3 of Miranda). As these facts do not rise to the level of a custodial arrest, we hold that

 4 Defendant was not entitled to Miranda warnings.

 5 The Lesser-Included Offense Instruction

 6        Defendant argues that he was entitled to a jury instruction on the lesser-included

 7 offense of attempt to possess cocaine. [DS 10] A defendant is entitled to jury

 8 instructions on his theory of the case if there is evidence to support the instruction, and

 9 the failure to give such an instruction is reversible error. State v. Brown, 1996-

10 NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69. However, such errors are subject to

11 harmless error review, see State v. Coffin, 1999-NMSC-038, ¶ 21, 128 N.M. 192, 991

12 P.2d 477, and we hold that any error was harmless in this case.

13        The evidence presented at trial to support Defendant’s proposed instruction

14 included that he went to the apartment complex to buy crack cocaine, but failed to

15 complete the transaction before the police arrived. [DS 5-6] There was also evidence

16 that Defendant never spit anything out of his mouth. [DS 6] Even if this evidence was

17 sufficient to warrant an instruction on Defendant’s theory that he merely attempted to

18 possess cocaine, the failure to so instruct the jury was harmless. The jury convicted


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 1 Defendant of tampering with evidence. [RP 122] In so doing, the jury was required

 2 to find that Defendant “hid and/or disposed of [c]ocaine” in order to “prevent the

 3 apprehension, prosecution, or conviction of himself.” [RP 130] As the jury had to

 4 find that Defendant possessed cocaine in order to hide or dispose of it, it seems clear

 5 that the jury rejected Defendant’s claim that he never possessed cocaine, and instead

 6 credited the police, who testified that Defendant had crack in his mouth, that they saw

 7 him spit it out, and that they later found it on the ground underneath the balcony. [DS

 8 5] Where the jury rejected the testimony that would have supported this instruction,

 9 we find the error to have been harmless.           Cf. Lovato v. Crawford & Co.,

10 2003-NMCA-088, ¶ 28, 134 N.M. 108, 73 P.3d 246 (finding any error in refusing to

11 give a jury instruction to be harmless when the jury rejected the factual basis of the

12 proposed instruction).

13 Defendant’s Motion to Amend the Docketing Statement

14        Defendant moves to amend the docketing statement to add a claim that he was

15 deprived of his right to confront the witnesses against him when an officer testified

16 about the informant’s statements to the police at a suppression hearing. [Def.’s MIO

17 3, 22-26] However, as Defendant acknowledges, State v. Rivera, 2008-NMSC-056,

18 ¶ 23, 144 N.M. 836, 192 P.3d 1213, forecloses such an argument since it holds that


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1 the Confrontation Clause does not apply to suppression hearings. Accordingly, we

2 deny Defendant’s motion to amend.

3       Therefore, for the reasons stated in this opinion and in our notices of proposed

4 summary disposition, we affirm.

5       IT IS SO ORDERED.



6
7                                        CYNTHIA A. FRY, Chief Judge

8 WE CONCUR:



 9
10 JONATHAN B. SUTIN, Judge



11
12 CELIA FOY CASTILLO, Judge




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