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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                      NO. 29,173

 5 ARNOLD CLINE,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler Gray, District Judge

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

11 for Appellee

12 Liane E. Kerr
13 Albuquerque, NM

14 for Appellant

15                             MEMORANDUM OPINION

16 KENNEDY, Judge.

17       Defendant appeals his conviction for possession of a controlled substance. We

18 proposed to affirm in a calendar notice, and Defendant has responded with a

19 memorandum in opposition. We are not persuaded by Defendant’s arguments, and

20 we therefore affirm.

21       Police went to a residence to question Defendant about a matter unrelated to the
 1 charge in this case. After Defendant was read his Miranda rights, he told Officer

 2 Edmonson that he had paraphernalia on his person that contained drug residue.

 3 Defendant handed the paraphernalia to the officer who handed it straight to Officer

 4 McGee. [DS 3] Officer Edmonson testified that Defendant stated that he had syringes

 5 “and stuff” in the residence and that Defendant took the officers into the residence and

 6 pointed out the items. [DS 4] Officer Caudill testified that Defendant took him to his

 7 room and pointed out some items of drug paraphernalia. Officer Caudill seized two

 8 loaded syringes from under the bed. [DS 5] All of the items that were seized were

 9 given to Officer McGee. [DS 5] Officer Sanchez testified about chain of custody of

10 the items seized. [DS 6]

11        The district court admitted into evidence State’s Exhibits 1, 2, 5, and 6. Exhibit

12 1 was a cigar box in which the two syringes were found; Exhibti 2 was the syringes

13 taken from the room; Exhibit 5 was the crime laboratory report; and Exhibit 6 was the

14 container with residue taken from Defendant at the beginning of the encounter.

15 According to Defendant the container with residue was never tested by the crime

16 laboratory. Defendant did not object to the admission of Exhibits 2 and 5. All of the

17 exhibits were admitted into evidence.



18 Admission of State’s Exhibits


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 1        Defendant continues to claim that the district court erred in admitting the State’s

 2 exhibits into evidence. Defendant contends that Exhibit 1 was objected to based on

 3 foundation, but should have been objected to based on prejudice; and Exhibit 6 should

 4 have been objected to based on relevance and lack of probative value, but that it is not

 5 clear what objection was made at trial. [MIO 2] Defendant claims that the failure to

 6 object to admission of Exhibits 2 and 5, and any defect in the objections to Exhibits

 7 1 and 6 should be taken into consideration when reviewing his ineffective assistance

 8 of counsel claim.

 9        As noted in our calendar notice, we do not consider arguments that were not

10 raised in the district court, except when those arguments involve matters of

11 jurisdictional or fundamental error. See In re Aaron L., 2000-NMCA-024, ¶ 10, 128

12 N.M. 641, 996 P.2d 431. Defendant did not object to the admission of Exhibits 2 and

13 5, and it appears that Defendant did not object to the admission of Exhibit 6.

14 Therefore, Defendant’s arguments were not preserved for appeal. Moreover, as

15 discussed in our notice, even if Defendant made an objection to Exhibit 6 based on

16 relevance and/or lack of probative value, the fact that Defendant admitted that he

17 possessed a container used for methamphetamine that now contained residue

18 establishes that admission of Exhibit 6 was proper in that it was relevant and probative

19 to the charge of possession of a controlled substance. Also, the testimony establishing


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 1 chain of custody of the seized items supports the district court’s decision to overrule

 2 Defendant’s objection to the admission of Exhibit 1.

 3 Jury Instruction

 4        In our calendar notice, we discussed the jury instruction on constructive

 5 possession in connection with Defendant’s argument that the jury instruction confused

 6 or misdirected the jury. We noted that constructive possession exists when a

 7 defendant has knowledge of drugs and exercises control over the drugs. See State v.

 8 Phillips, 2000-NMCA-028, ¶ 8, 128 N.M. 777, 999 P.2d 421. We proposed to hold

 9 that, in this case, Defendant had the requisite knowledge based on the evidence

10 showing that Defendant admitted that he possessed the container with drug residue,

11 pointed out syringes and other drug paraphernalia located in a room in the residence,

12 and admitted that it was his bedroom. [RP 7] Therefore, even if Defendant did not

13 have exclusive control over the bedroom, based on this additional evidence, an

14 inference could be made that Defendant had constructive possession over the drugs

15 and paraphernalia. Id.

16        In response, Defendant argues that he tendered his own instruction and objected

17 to the denial of his tendered instruction. [MIO 7] Therefore, the district court was

18 alerted to Defendant’s argument with regard to the instruction given to the jury. We

19 agree that Defendant preserved his argument. However, as discussed in our calendar


                                              4
 1 notice, based on the instruction that was given and the evidence presented at trial,

 2 there is no support for Defendant’s argument that the instruction confused or

 3 misdirected the jury.

 4 Ineffective Assistance of Counsel

 5        Defendant again claims that his counsel was ineffective for failing to object to

 6 the admission of Exhibits 2 and 5, for failing to properly object to Exhibits 1 and 6,

 7 and for failing to argue that his confession was inadmissible. [MIO 8-9] Defendant

 8 contends that defense counsel’s failures cannot be categorized as tactics and strategy

 9 and that defense counsel’s actions resulted in a miscarriage of justice and amounted

10 to plain error.

11        In support of his arguments, Defendant cites to a number of cases, including

12 State v. Chacon, 80 N.M. 799, 461 P.2d 932 (Ct. App. 1969). In Chacon, this Court

13 stated that we cannot look at counsel’s trial tactics “with the benefit of hindsight” in

14 order to determine how counsel might have acted. Id. at 801, 461 P.2d at 934. We

15 held that a claim of ineffective assistance of counsel cannot be found based on the

16 mere fact that a defendant was not successful at trial; or based on a showing of bad

17 tactics or strategy, carelessness, or counsel’s mistakes or inexperience. Id. On appeal,

18 we must affirm unless there is affirmative evidence establishing that there was a

19 miscarriage of justice, in that the trial was “a sham, a farce, or a mockery.” Id. A


                                              5
 1 failure to make an objection is a matter of trial tactics and does not establish

 2 ineffective assistance of counsel. See State v. Rodriguez, 107 N.M. 611, 615-16, 762

 3 P.2d 898, 902-03 (Ct. App. 1988). Furthermore, the evidence established that

 4 Defendant admitted that he possessed a container with drug residue and that he

 5 pointed out other illegal items in a room that he admitted was his room. Therefore,

 6 to the extent that defense counsel failed to object to the admission of Defendant’s

 7 “confession,” counsel is not ineffective for failing to make an objection that is not

 8 supported by the record. See State v. Chandler, 119 N.M. 727, 735, 895 P.2d 249,

 9 257 (Ct. App. 1995). Finally, the rule regarding plain error “applies only if the

10 alleged error affected the substantial rights of the accused.” State v. Contreras, 120

11 N.M. 486, 492, 903 P.2d 228, 234 (1995), limited on other grounds as recognized by

12 State v. Rackley, 2000-NMCA-027, ¶ 25, 128 N.M. 761, 998 P.2d 1212. Because the

13 evidence presented at trial showed that the syringes, the box they were contained in,

14 and the container with drug residue were offered by Defendant to police, and because

15 there was evidence presented in support of the admission of the laboratory report, the

16 failure to object to the admission of those items did not amount to plain error.

17 Sufficiency of Evidence to Support the Conviction

18        Defendant claims that his mere presence in the vicinity was not sufficient to

19 show that he possessed a controlled substance. However, Defendant admitted that he


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 1 had a container used for holding methamphetamine and that there was residue in the

 2 container. Defendant also pointed out illegal items, including syringes containing a

 3 controlled substance, in a room that he claimed was his room. This was sufficient to

 4 show that Defendant possessed a controlled substance and to show that the conviction

 5 was not based on Defendant’s mere presence in the vicinity.                 See State v.

 6 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (“In reviewing the

 7 sufficiency of the evidence, we must view the evidence in the light most favorable to

 8 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the

 9 evidence in favor of the verdict.”).

10        Defendant continues to claim that his confessions or admissions were the only

11 link between him and the controlled substances found in the residence. Defendant

12 argues that the corpus delicti of the possession offense cannot be based solely on

13 confessions or admissions. Contrary to Defendant’s claim, his admissions and/or

14 confessions were not the sole basis for the possession conviction. Not only did

15 Defendant admit that he had a container with drug residue on his person, he also

16 produced that container for the officers. In addition, Defendant pointed to locations

17 in the room where controlled substances or paraphernalia could be found, and based

18 on the assistance from Defendant, officers were able to find controlled substances and

19 paraphernalia in that room. Based on all of the evidence presented at trial, viewing


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 1 the evidence in the light most favorable to the verdict, indulging all inferences in favor

 2 of the verdict, and resolving all conflicts in favor of the verdict, there was sufficient

 3 evidence to support Defendant’s conviction for possession of a controlled substance.



 4 Fundamental and Cumulative Error

 5        Defendant claims that the cumulative impact of errors at trial was so prejudicial

 6 that he was deprived of a fair trial. Defendant further claims that the cumulative error

 7 resulted in fundamental error. Defendant bases his cumulative-error argument on

 8 counsel’s failure to object to evidence. As we have discussed, counsel’s decision to

 9 not object to the admission of certain evidence did not amount to error, and we find

10 no other error in the district court proceedings. See State v. Trujillo, 2002-NMSC-

11 005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (stating that the cumulative error doctrine is

12 strictly applied and may not be successfully invoked if the record as a whole

13 demonstrates that the defendant received a fair trial).

14        Defendant also claims that the question of his guilt is so doubtful that it would

15 shock the conscience to allow the conviction to stand, or it amounts to a miscarriage

16 of justice. As we have discussed, there was sufficient evidence to support Defendant’s

17 conviction and we find no error in the proceedings below.               The doctrine of

18 fundamental error does not apply in this case.


                                               7
1       For the reasons discussed in this opinion and in our calendar notice, we affirm

2 Defendant’s conviction.

3       IT IS SO ORDERED.

4                                       ___________________________________
5                                       RODERICK T. KENNEDY, Judge

6 WE CONCUR:



7 ___________________________
8 ROBERT E. ROBLES, Judge



 9 ___________________________
10 TIMOTHY L. GARCIA, Judge




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