State v. Benally

                                                              Office of Director        New Mexico
                                                                     2019.09.16         Compilation
                                                                                        Commission
                                                               '00'06- 14:59:28
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 6, 2019

No. A-1-CA-36122

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

MILO BENALLY,

      Defendant-Appellant.

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

Certiorari Granted, September 9, 2019, S-1-SC-37613, Certiorari Denied, June 13,
2019, S-1-SC-37629. Released for Publication September 24, 2019.

Hector H. Balderas, Attorney General
Santa Fe, NM
Walter M. Hart III, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

HANISEE, Judge.

{1}   Defendant appeals from his convictions for two counts of possession of a deadly
weapon by a prisoner in violation of NMSA 1978, Section 30-22-16 (1986), for which he
was sentenced to consecutive nine-year terms, or a total of eighteen years’
incarceration. 1 He contends that neither conviction was supported by substantial
evidence and that the separate convictions violate his right to be free from double
jeopardy. We reject Defendant’s challenge to the legal sufficiency of the evidence, but
agree that the two convictions violate the prohibition against double jeopardy.

BACKGROUND

{2}    Prison staff received information from an inmate that prompted a “shakedown” of
the particular area of the prison where Defendant was housed. This entailed the
systematic removal of inmates and an ensuing search for contraband, including the
bunk and shower areas of the “pod” that was the subject of concern. The area searched
by prison staff was an open, dormitory-style space with approximately six to eight
recessed bunk units, each containing about six bunks.

{3}      Defendant slept on the bottom mattress of a three-stack bunk, with the middle
bunk being vacant. In Defendant’s bunk area were pieces of legal paperwork, mail, and
other items that bore only Defendant’s name. On an “L” shaped support bar of the
vacant, middle bunk at the top of Defendant’s bunk area, prison staff found a shaving
razor with a playing card folded around it to form a handle (razor weapon). Upon
discovering the razor weapon, prison staff removed the mattress from Defendant’s bunk
and noticed a four- to five-inch slit in its side. They cut open the mattress and found a
sharpened piece of the end of a plastic mop handle (mop weapon) concealed within.
Approximately eighty feet away in the shower area of the pod, prison staff next found
orange plastic shavings that matched the end of a mop handle found in a shower stall
and similar residue ground into the concrete lip of the shower pan. After checking a
utility closet that contained items used by inmates to clean their cells, prison staff also
determined that an end to one of the plastic mop handles had been removed.

{4}    Upon discovery of the two makeshift weapons, Deputy Jason Sherman spoke
with Defendant but did not inform him of any specifics associated with the discovery of
the weapons. Deputy Sherman told Defendant only that he wanted to “speak with him
about the incident at the jail today.” During the conversation, Defendant expressed
feelings of “hate and anger” toward a particular inmate and stated that he wanted to “cut
that guy’s head off.” Obliquely referring to what was found during the prison search,
though not identifying any specific item or object by name, Defendant also stated,
“Check this out, Sherman. What if that thing is mine?” Defendant went on to say that (1)
the prison staff should be glad they found what they were looking for; (2) had he been
asked, he simply would have told the prison staff to “pull all the mattresses and that
would have been the end of it”; and (3) some things “could have gone down, but that
God was looking out” and pulled Defendant through the situation before he “lost it” and
“something . . . [went] down.” Despite these statements, when asked to admit the
weapons were his, Defendant declared, “I don’t believe in statements because I could



1
 Defendant also received an eight-year habitual offender enhancement for each count of conviction, resulting in a
total prison sentence of thirty-four years for the two possession charges.
lie and say it ain’t mine and be lying out my ass and still get charged. Or I could say,
‘Yes, it’s mine,’ and still get charged with it.”

{5}     Defendant was charged with two counts of possession of a deadly weapon or
explosive by a prisoner, contrary to Section 30-22-16. At trial, Defendant testified that
the razor and mop weapons were not his and he did not know what Deputy Sherman
was referring to during their conversation following the discovery of the weapons. The
jury returned guilty verdicts on both counts.

DISCUSSION

I.     Sufficiency of the Evidence

{6}    Defendant argues that his convictions are not supported by substantial evidence.
Specifically, he contends that because “[t]he weapons in this case were accessible to
anyone in the pod[,] every inmate in the pod could have exercised control over them[,]”
thus precluding a finding that Defendant, and not any other inmate, possessed the
weapons.

{7}     “To determine whether the evidence presented was sufficient to sustain the
verdict, we must decide whether substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilty beyond a reasonable doubt with respect to
every element essential to a conviction.” State v. Brietag, 

, ¶ 9, 

, 

. Substantial evidence consists of relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. See State v.
Salgado, 

, 

, 

. We view the evidence in
the light most favorable to the verdict, “indulging all reasonable inferences and resolving
all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-
009, ¶ 26, 

, 

. We disregard all evidence and inferences that
support a different result. See State v. Rojo, 

, 

, 

. “We do not reweigh the evidence and may not substitute our judgment for
that of the fact[-]finder, so long as there is sufficient evidence to support the verdict.”
Brietag, 

, ¶ 9.

{8}    In it is entirety Section 30-22-16 provides:

              Possession of deadly weapon or explosive by prisoner in lawful
       custody consists of any inmate of a penal institution, reformatory, jail or
       prison farm or ranch possessing any deadly weapon or explosive
       substance.

             Whoever commits possession of deadly weapon or explosive by
       prisoner is guilty of a second degree felony.

The only element at issue in this appeal is the statutory requirement that the forbidden
weapons at issue were possessed by Defendant. Because the weapons were not found
on Defendant’s person but were discovered concealed above his bunk and within his
mattress, this case turns on constructive, not actual, possession. See State v. Barber,

, 

, 

 (describing the differences between
actual and constructive possession and explaining that “[w]hen actual physical control
cannot be directly proven, constructive possession is a legal fiction used to expand
possession and include those cases where the inference that there has been
possession at one time is exceedingly strong” (internal quotation marks and citation
omitted)).

{9}    “Constructive possession exists when the accused has knowledge of [the
prohibited items] and exercises control over them.” State v. Phillips, 

, 

, 

. While “the mere presence of the contraband is not
enough to support an inference of constructive possession[,]” 

 a person can be
convicted of possession even “without proof that he [or she] was the exclusive
occupant” of the area where the contraband was located. State v. Muniz, 1990-NMCA-
105, ¶ 15, 

, 

. When exclusive control is at issue, “[a]dditional
circumstances or incriminating statements are required.” Phillips, 

.
“The accused’s own conduct may afford sufficient additional circumstances for
constructive possession.” 

 We “must be able to articulate a reasonable analysis that
the fact-finder might have used to determine knowledge and control.” State v. Garcia,

, 

, 

 (alteration, internal quotation marks,
and citation omitted).

{10} Based on the evidence at trial, we conclude that the jury could have reasonably
inferred that Defendant had knowledge of and control over both weapons. To begin,
numerous statements were attributed to Defendant that the jury could have taken as
evidence that Defendant had knowledge of the weapons. Even though Deputy Sherman
did not inform Defendant of the specific items found by prison staff, Defendant posed a
question to the deputy—“Check this out, Sherman. What if that thing was mine?”—from
which, in context, the jury could reasonably infer that Defendant had knowledge of the
contraband found, i.e., the weapons hidden in the bottom bunk area. Significant to our
analysis are Defendant’s expression of hatred and anger toward another inmate, his
acknowledgement that he wanted to do harm to that person, and his stated appreciation
that prison staff conducted the search when they did, i.e., before Defendant “lost it” and
“something . . . [went] down.” These statements, coupled with Defendant’s
acknowledgement that had prison staff asked, he would have told them to “pull all the
mattresses and that would have been the end of it[,]” provided sufficient evidence from
which the jury could infer that Defendant had knowledge of the weapons. See State v.
Jimenez, 

, 

 (holding that the state can prove
knowledge through circumstantial evidence demonstrating “that the defendant knows of
the presence and character of the item possessed” (internal quotation marks and
citation omitted)).

{11} Further, and with respect to the essential element of control, prison staff
discovered numerous items bearing Defendant’s name in the bottom bunk where the
weapons were discovered, supporting the conclusion that the bunk was, indeed,
Defendant’s. Additionally, both weapons were easily accessible to—and, indeed, only
within arm’s reach of—the person occupying that bunk, i.e., Defendant. See Barber,

 (providing that “[e]vidence of control includes the power to
produce or dispose of” the contraband). This takes on added import in light of the
testimony elicited from a fellow inmate indicating that if one inmate had an issue with
another inmate, the first inmate was likely to keep a weapon in his mattress for easy
access.

{12} Because there is evidence from which the jury could reasonably infer that
Defendant had knowledge of and control over the weapons, we conclude that
Defendant’s convictions are supported by substantial evidence.

II.    Double Jeopardy

{13} Defendant contends that his convictions violate his right to be free from double
jeopardy. Whether multiple convictions violate the prohibition against double jeopardy
involves “a constitutional question of law which we review de novo.” State v. Swick,

, 

. “The Double Jeopardy Clause protects criminal
defendants against multiple punishments for the same offense.” State v. Bernard, 2015-
NMCA-089, ¶ 15, 

 (alteration, internal quotation marks, and citation
omitted). There are two types of “multiple punishments” cases: “double description”
cases, “in which a defendant’s single course of conduct results in multiple charges
under different criminal statutes,” and “unit-of-prosecution” cases, “in which a defendant
faces multiple charges under the same criminal statute for the same conduct.” Id. ¶ 16.
This is a unit-of-prosecution case.

{14} In unit-of-prosecution cases, the “relevant inquiry . . . is whether the [L]egislature
intended punishment for the entire course of conduct or for each discrete act.” Swafford
v. State, 1991–NMSC–043, ¶ 8, 

, 

. To discern the
Legislature’s intent, we apply a two-step analysis. See Bernard, 

.
“First, we review the statutory language for guidance on the unit of prosecution.” State
v. Bernal, 

, 

, 

. If the plain language of
the statute is unclear or ambiguous, “we move to the second step, in which we
determine whether a defendant’s acts are separated by sufficient ‘indicia of distinctness’
to justify multiple punishments under the same statute.” 

 If the second step of the
analysis does not demonstrate sufficient distinctions between the acts, we apply the rule
of lenity and presume that the Legislature did not intend to impose multiple punishments
where the acts are not sufficiently distinct. See State v. Tidey, 

,

 (explaining that “the rule of lenity favors a single unit of prosecution and
disfavors multiple units of prosecution” (alterations, internal quotation marks, and
citation omitted)); Bernard, 

 (explaining that “[t]he rule of lenity
requires that we interpret the statute in the defendant’s favor by invoking the
presumption that the Legislature did not intend to create separately punishable
offenses”).

The Unit of Prosecution in Cases Involving Crimes of Possession
{15} As our Supreme Court recently observed, “the unit of prosecution defines how
many offenses the defendant has committed.” State v. Ramirez, 

,

 (internal quotation marks and citation omitted). Ordinarily, the unit of
prosecution is defined by “the actus reus, the physical conduct of the defendant.” 

(internal quotation marks and citation omitted). However, when it comes to possession-based crimes, our jurisprudence suggests the unit of prosecution may be defined in two
ways: (1) by the physical conduct of the defendant—i.e., the act of possessing
contraband as of a specific point in time—or (2) by the individual items possessed.
Compare State v. Olsson, 

, 

 (considering
whether possession of multiple, distinct images of child pornography were separately
punishable acts or “one unitary act of possession[,]” and concluding that the defendants
could “only be charged with one count of possession”), and Tidey, 

 (applying a unit-of-prosecution analysis to determine whether the simultaneous
possession of two different types of drug paraphernalia constituted “one unitary act” or
separately punishable acts, and concluding that possession of two items of contraband
was a single punishable act), with Bernard, 

 (considering
whether the defendant’s possession of four stolen vehicles “constitutes a single course
of conduct that is punishable as only one violation” and concluding that the defendant
could be punished separately for each stolen vehicle he possessed). The recent cases
cited above, addressing double jeopardy challenges to multiple convictions under
possession statutes, have all concluded that the statute under consideration was
ambiguous as to the unit of prosecution. See Olsson, 

(concluding that the plain meaning as to the proper unit of prosecution under the
possession of child pornography statute, NMSA 1978, § 30-6A-3 (2016), is
ambiguous); Tidey, 

 (same with respect to the possession of drug
paraphernalia statute, NMSA 1978, § 30-31-25.1 (2001)); Bernard, 

 (same with respect to the possession of a stolen vehicle statute, NMSA 1978,
§ 30-16D-4 (2009)).

Section 30-22-16 Is Ambiguous as to the Applicable Unit of Prosecution

{16} Here, the State concedes that the plain language of Section 30-22-16 does not
clearly and unambiguously express the applicable unit of prosecution. While we are not
bound by the State’s concession, see State v. Caldwell, 

, 

, 

 (refusing to be bound by the state’s concession that the defendant’s
conduct in that case was unitary and undertaking its own analysis after noting that “[t]he
public interest in criminal appeals does not permit their disposition by party stipulation”
(internal quotation marks and citation omitted)), we agree that Section 30-22-16 does
not plainly define the Legislature’s intended unit of prosecution for violations of that
statute.

{17} As noted above, Section 30-22-16 defines the conduct proscribed by its terms in
a single sentence: “Possession of deadly weapon or explosive by prisoner in lawful
custody consists of any inmate of a penal institution . . . possessing any deadly weapon
or explosive substance.” 

 As with other possession-based statutes, Section 30-22-16
is facially ambiguous as to the unit of prosecution because it can be construed as
intending either a single punishment based on the actus reus of “possession,” or instead
multiple punishments based on each individual deadly weapon possessed. Cf. Bernard,

 (concluding that the statute criminalizing possession of a
stolen vehicle was ambiguous where the statutory language did not “provide clear
guidance as to whether the specific type of [item possessed] may constitute the proper
unit of prosecution for multiple violations” and was “silent as to whether the number of
[items] unlawfully possessed by a defendant may be charged as separate offenses”).
Concluding that Section 30-22-16 is ambiguous as to the intended unit of prosecution,
we turn next to determining whether, based upon the facts of this case, Defendant’s
conduct in possessing the razor weapon and the mop weapon “is better characterized
as one unitary act, or multiple, distinct acts, consistent with legislative intent.” Tidey,

 (internal quotation marks and citation omitted).

“Indicia of Distinctness” Analysis

{18} To determine whether separate convictions are justified under Section 30-22-16
for each of the weapons found in Defendant’s possession, we consider whether the
convictions were supported by sufficient indicia of distinctness. We may look to “time
and space considerations” as well as the “quality and nature of the acts, or the objects
or results involved.” Tidey, 

 (internal quotation marks and citation
omitted).

{19} As to time and space considerations, the State argues that “the evidence
demonstrates that Defendant’s possession of each weapon commenced at a different
time—at the distinct moments when Defendant created each weapon[,]” thereby
allowing separate punishment for “distinct and separate[] . . . violations of [Section] 30-
22-16.” Yet the State fails to point to anything in the record establishing—or even
supporting the inference—that it was Defendant who created either of the weapons.
Granted, Daniel Webb, an officer at the detention center, testified that he found
evidence in a shower stall, some eighty feet from Defendant’s bunk, suggesting that the
mop weapon had been crafted there. However, the State points to no testimony or
evidence from which the jury could reasonably infer that Defendant was the person who
created either of the weapons, nor does our review of the record reveal any such
evidence. Moreover, the State made no claim or showing that the shower area was in
Defendant’s exclusive control or that Defendant was seen or admitted to creating either
weapon. And while the State points out that Defendant made “incriminating statements”
to Deputy Sherman—i.e., “What if that thing is mine?” and “I could lie and say ‘It ain’t
mine’ . . . [o]r I could say, ‘Yes, it’s mine’ ”—those statements merely establish that
Defendant had knowledge of the existence of a weapon or weapons, not that he created
either of the weapons later found in his possession. In the absence of any such
evidence, we reject the State’s unsupported contention that Defendant’s possession of
each weapon was separated in time, thereby allowing separate punishments based on
separate acts. See Chan v. Montoya, 

, 

, 

(stating that “[t]he mere assertions and arguments of counsel are not evidence” (internal
quotation marks and citation omitted)); see also State v. Dominguez, 

, 

 (“[W]e will not search the record to find facts to support [an]
argument.”).

{20} With respect to space considerations, it bears emphasis that while the weapons
were found in two different places in Defendant’s bunk area—the razor weapon in the
upper support beam above Defendant’s sleeping area and the mop weapon inside
Defendant’s mattress—both were discovered near one another within Defendant’s
limited bunk space. That the weapons were secreted and found in separate hiding
places each within an arm’s-length of the other does not reflect possessory conduct
sufficiently distinct in nature to support multiple punishments. See Bernard, 2015-
NMCA-089, ¶ 27 (concluding that time and space considerations failed to establish the
distinctness of the defendant’s acts of possessing four stolen vehicles even where there
was evidence that the defendant may have possessed certain vehicles at different times
and in different locations). Indeed, the absence of distinct acts suggested by the
weapons’ proximity to one another is reflected in both the fact that they were found
during the same search and that the discovery led to identical jury instructions with only
the name of the weapon differing. See Tidey, 

 (concluding that
there was “an insignificant indicia of distinctness” supporting separate punishments
where separate items of drug paraphernalia were “simultaneously found” and the jury
received the same instruction as to both counts of possession); Bernard, 2015-NMCA-
089, ¶ 27 (noting that the four stolen vehicles were recovered “from the same location”
and that the jury “was not instructed to consider whether [the d]efendant possessed the
vehicles at separate times and locations”). Thus, we agree with Defendant that, based
on the evidence adduced at trial, the conduct underlying the two possession charges
was the single act of possessing two different weapons at the same time, and that
neither time nor space considerations support multiple punishments here.

{21} We next consider whether the objects and results involved in this case supply the
necessary indicia of distinctness to allow the conclusion that the Legislature intended a
prisoner in Defendant’s position to be punished separately for each weapon possessed.
See Bernard, 

 (“If a case cannot be resolved from time and space
considerations, then resort must be had to the quality and nature of the acts or to the
objects and results involved.” (internal quotation marks and citation omitted)). Turning
first to the objects involved, the two makeshift weapons found to be in Defendant’s
possession, the razor weapon and the mop weapon, are more similar than different.
The fact that one weapon was designed to inflict harm through slashing and the other
designed to injure through stabbing does not provide the differentiation necessary to
support separate convictions in this case. That is because our Legislature has defined
“deadly weapon” as including, inter alia,

       any weapon which is capable of producing death or great bodily harm,
       including but not restricted to any types of daggers, brass knuckles,
       switchblade knives, bowie knives, poniards, butcher knives, dirk knives
       and all such weapons with which dangerous cuts can be given, or with
       which dangerous thrusts can be inflicted, including swordcanes, and any
       kind of sharp pointed canes, also slingshots, slung shots, bludgeons[.]
NMSA 1978, § 30-1-12(B) (1963) (emphasis added). Indeed, rather than clarifying
whether the Legislature intended separate punishment for possession of each individual
weapon meeting the definition of “deadly weapon,” the definition of “deadly weapon”
only amplifies the lack of clarity regarding the intended unit of prosecution under Section
30-22-16. Because the razor weapon and the mop weapon each qualify as a “deadly
weapon” as that term is defined in the Criminal Code, and there being no other reliable
indicators of legislative intent, we conclude that the minor differences in functionality
between the two prison-made weapons possessed by Defendant does not justify
convicting him of separate counts under Section 30-22-16. See Tidey, 

 (explaining that “[t]he Legislature specifically included a comprehensive list of
defined items . . . that constitute drug paraphernalia” and noting that the items at issue
in that case—empty baggies and a straw with a burnt end—both fell within the
“containers and other objects used” category of drug paraphernalia (internal quotation
marks and citation omitted)); cf. Bernard, 

 (relying on various
legislative enactments contained in both the Motor Vehicle Code and the Criminal Code
in concluding that there existed sufficiently distinct indicia of “objects and results” to
support multiple punishments).

{22} Turning next to the results involved, the only “result” of Defendant’s possession
of the razor and mop weapons was the completed act of possession itself, a violation of
Section 30-22-16. Indeed, this is neither a case in which a further consequence of
possession of a deadly weapon by a prisoner materialized—e.g., where multiple deadly
weapons simultaneously possessed are used to inflict multiple injuries on a victim or
separate injuries on multiple victims—nor one in which the “results involved” bear the
evidentiary capacity to supply the necessary indicia of distinctness to support multiple
punishments under Section 30-22-16. Cf. Bernal, 

 (concluding
that indicia of distinctness supported separate punishment for two attempted robberies
where “there were two victims, and most notably, each victim suffered separate and
distinct harms at the hands of [the d]efendant”); State v. Baca, 

, ¶¶ 1-2,

, 

 (involving a case where the prisoner used a “shank” or
“crude jail-made knife” to kill another inmate and was convicted of both first degree
murder and possession of a deadly weapon by a prisoner). That Defendant admitted to
having feelings of “hate and anger” toward a particular inmate and wanting to “cut that
guy’s head off” at most supplies evidence of a contemplated and potential “result” of
Defendant’s possession. Fortuitously, however, no such result ever occurred thanks to
the diligence of prison personnel. Thus, on the facts of this case, the “result” of
Defendant’s prohibited conduct—i.e., the completed act of possessing deadly
weapons—also fails to establish sufficient indicia of distinctness to justify multiple
punishments.

{23} As a final matter, we briefly address the State’s argument centering on the “policy
considerations” underlying and the “interests protected” by Section 30-22-16, an
argument the State advances as part of its “objects and results” discussion and one
which reflects a misunderstanding of the focus of this aspect of a unit-of-prosecution
analysis. The State argues that the statute evinces the Legislature’s “clear and selfevident policy . . . to prohibit and minimize the availability of deadly weapons to
prisoners in a confined place of incarceration.” According to the State, “the Legislature
must have intended that there be as few deadly weapons as possible available to
inmates.” 2 With this much, we agree. See Baca, 

, ¶ 16 (describing a
violation of Section 30-22-16 as “a crime closely approaching a strict liability crime” and
noting that the purpose of the statute “is to protect inmates and officers from assaults
with dangerous weapons perpetrated by armed prisoners”). However, the relevant
inquiry does not involve a determination of the legislative purpose and intent in enacting
the statute itself, but rather whether the Legislature intended for multiple punishments to
be imposed under the specific facts of a given case. As previously discussed, we
cannot say that that there are sufficient indicia of distinctness to support Defendant’s
separate convictions under Section 30-22-16. Applying the rule of lenity, we hold that
Defendant’s convictions for simultaneously possessing two deadly weapons violate his
right to be free from double jeopardy. We, therefore, reverse with instructions to the
district court to vacate one of Defendant’s convictions.

CONCLUSION

{24} We conclude that sufficient evidence supports Defendant’s convictions under
Section 30-22-16. However, because we hold that those convictions violate the
prohibition against double jeopardy, we remand to the district court to vacate one of the
convictions.

{25}     IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

BRIANNA H. ZAMORA, Judge




2The State cites Ramirez, 

, in support of this contention. Notably, however, Ramirez’s
discussion of “[p]olicy considerations” and what the Legislature “must have intended” informed our Supreme
Court’s interpretation of the statute there at issue under the first step of a unit-of-prosecution analysis, i.e., in
resolving whether the statute was ambiguous as to the unit of prosecution, not under step two’s “indicia of
distinctness” analysis, which focuses on whether the unit of prosecution is discernible vis-à-vis the specific facts of
the case.