Certiorari Denied, No. 31,483, January 30, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-024
Filing Date: December 9, 2008
Docket No. 27,048
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PAUL VANCE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Edmund H. Kase III, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Max Shepherd, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Vicki W. Zelle, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
CASTILLO, Judge.
{1} Defendant was convicted of trafficking methamphetamine by manufacture,
distribution of a controlled substance, possession of drug precursors, and possession of drug
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paraphernalia. He raises three issues on appeal, one of which is an issue of first impression
in New Mexico: whether under the circumstances of this case, medicines such as
pseudoephedrine cold tablets are excluded from the statutory definition of a “drug precursor”
under the Drug Precursor Act (DPA), NMSA 1978, §§ 30-31B-1 to -18 (1989, as amended
through 2004). We conclude that Section 30-31B-2(L) excludes the tablets that were in
Defendant’s possession, and we reverse Defendant’s conviction for possession of drug
precursors. We affirm the remaining convictions.
I. BACKGROUND
{2} The charges in this case arose from a police officer’s observations made during a
visit to Defendant’s home for the purpose of ensuring that Defendant was complying with
court-ordered conditions of release in an unrelated matter. Defendant and two other
individuals, both of whom testified at trial, were present. After entering the residence, the
officer noticed a number of suspicious items, including a plate containing a white powdery
substance and a razor blade, a hot plate, unused coffee filters, many batteries, and a bottle
containing a hazy liquid. The white powdery substance field-tested positive for
methamphetamine.
{3} Other officers arrived, and after a search warrant was obtained, the officers
conducted a more thorough search and found various pipes, containers of unknown liquids,
batteries, coffee filters, razor blades, light bulbs, HEET fuel line antifreeze, starting fluid,
and twenty-two pseudoephedrine cold tablets still in their original packaging.
Pseudoephedrine tablets can be used in manufacturing methamphetamine. Officers
photographed the items found, which were subsequently disposed of pursuant to hazardous
materials procedures. The finished methamphetamine was preserved.
{4} As discussed above, Defendant was convicted of trafficking methamphetamine by
manufacture, distribution of a controlled substance (methamphetamine), possession of drug
precursors, and possession of drug paraphernalia. Defendant appeals the verdict.
II. DISCUSSION
{5} Defendant raises three issues on appeal: (1) whether he was improperly convicted
of possession of drug precursors because medicines such as pseudoephedrine cold tablets are
excluded from the statutory definition of drug precursor, (2) whether his convictions for
trafficking by manufacture subsumes his convictions for possession of drug precursors and
possession of drug paraphernalia such that conviction of all three offenses violates double
jeopardy, and (3) whether the district court abused its discretion by permitting a PowerPoint
presentation on methamphetamine manufacture that biased and confused the jury. We
address each issue in turn.
A. Possession of Drug Precursors
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{6} Defendant asserts that he was improperly convicted of possession of drug precursors
based on the twenty-two pseudoephedrine cold tablets in their original packaging found in
his residence. The State argues that this issue was not preserved at trial. Defendant responds
and contends that his actions did not constitute a crime as defined by the DPA and that his
conviction on this count therefore constituted fundamental error. See In re Gabriel M.,
2002-NMCA-047, ¶¶ 9, 21, 132 N.M. 124, 45 P.3d 64 (reversing, as fundamental error,
adjudication of arson because burning the personal property of another does not fall within
the statutory definition of arson). “[I]f the evidence is insufficient to legally sustain one of
the elements of a crime, the error is fundamental and may be raised for the first time on
appeal.” State v. Scott, 2008-NMCA-075, ¶ 4, 144 N.M. 231, 185 P.3d 1081. We thus
review Defendant’s conviction for fundamental error in order to determine whether the
evidence was legally insufficient to satisfy an element of the crime of possession of drug
precursors.
{7} “The starting point in every case involving the construction of a statute is an
examination of the language utilized by [the Legislature] in drafting the pertinent statutory
provisions.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233 (alteration
in original) (internal quotation marks and citation omitted). “When a statute contains
language which is clear and unambiguous, we must give effect to that language and refrain
from further statutory interpretation.” Id. (internal quotation marks and citation omitted).
The DPA provides that it “is unlawful for any person: . . . to manufacture, possess, transfer
or transport a drug precursor without the appropriate license or in violation of any rule or
regulation of the board.” Section 30-31B-12(A)(8). A drug precursor is defined by the
statute as a “substance, material, compound, mixture or preparation listed in Section
30-31B-3 . . . or regulations adopted thereto or any of their salts or isomers.” Section 30-
31B-2(L). Section 30-31B-3 includes pseudoephedrine among substances that are drug
precursors. The DPA also “specifically excludes those substances, materials, compounds,
mixtures or preparations [that] are prepared for dispensing pursuant to a prescription or
over-the-counter distribution as a substance [that] is generally recognized as safe and
effective within the meaning of the Federal Food, Drug and Cosmetic Act.” Section 30-31B-
2(L).
{8} The State argues that Sections 30-31B-3 and -2(L) appear to contradict each other
and that attempting to reconcile them would lead to an absurd result not intended by the
Legislature. We disagree. We see no absurdity in the Legislature’s making it unlawful to
possess pseudoephedrine without a license, while at the same time, exempting from this
prohibition medications containing this ingredient.
{9} The State argues that pseudoephedrine cold tablets, when obtained for use as a drug
precursor, are not “generally recognized as safe and effective within the meaning of the
Federal Food, Drug and Cosmetic Act.” Pseudoephedrine cold tablets, however, are
prepared for dispensation as over-the-counter medications, as discussed below. Because
these tablets are generally recognized as safe and effective at the time they are prepared for
dispensing, what they are actually used for later is irrelevant for purposes of the statute. The
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State’s argument ignores the language in Section 30-31B-2(L) that specifies that the
exclusion applies generally to “substances, materials, compounds, mixtures or preparations
[that] are prepared for dispensing pursuant to a prescription or over-the-counter distribution.”
The statute neither limits the exclusion nor requires proof regarding the actual use of the
medication before the exclusion is applicable.
{10} The State also contends that pseudoephedrine cold tablets are no longer an over-the-
counter medication after the effective date of the Combat Methamphetamine Epidemic Act
of 2005, which is a federal law requiring pharmacies to keep pseudoephedrine cold tablets
and certain other medications behind the counter and to obtain identification and record the
names of persons purchasing them. See 21 U.S.C. § 801 (2005). The State cites no authority
for the proposition that these recent restrictions on the sale of pseudoephedrine cold tablets
take them out of the commonly understood definition of an over-the-counter drug, which is
a drug that may be sold without a prescription. See, e.g., Black’s Law Dictionary 1137 (8th
ed. 2004) (defining “over-the-counter” as “sold legally without a doctor’s prescription”).
{11} Accordingly, we reverse Defendant’s conviction for possession of drug precursors
because Section 30-31B-2(L) specifically excludes over-the-counter pseudoephedrine cold
tablets of the type in Defendant’s possession.
B. Double Jeopardy
{12} We first note that our reversal of Defendant’s conviction for possession of drug
precursors disposes of his double jeopardy challenge as to that charge. Defendant also
asserts that his convictions for trafficking by manufacture (methamphetamine) and
possession of drug paraphernalia violate double jeopardy. “The defense of double jeopardy
may not be waived and may be raised by the accused at any stage of a criminal prosecution,
either before or after judgment.” NMSA 1978, § 30-1-10 (1963); State v. Lucero, 1999-
NMCA-102, ¶ 18, 127 N.M. 672, 986 P.2d 468. This is a “double description” case, in
which “the defendant is charged with violations of multiple statutes that may or may not be
deemed the same offense for double jeopardy purposes.” Swafford v. State, 112 N.M. 3, 8,
810 P.2d 1223, 1228 (1991). Where a defendant alleges a double jeopardy violation based
on multiple punishments for the same conduct, the issue is a question of legislative intent
that we review de novo. State v. Franco, 2005-NMSC-013, ¶ 5, 137 N.M. 447, 112 P.3d
1104.
{13} Swafford set forth the test for double jeopardy violations in double-description cases:
Under the first part of the analysis, . . . the task is merely to determine
whether the conduct for which there are multiple charges is discrete (unitary)
or distinguishable. If it reasonably can be said that the conduct is unitary,
then one must move to the second part of the inquiry. Otherwise, if the
conduct is separate and distinct, inquiry is at an end.
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112 N.M. at 14, 810 P.2d at 1234. In determining whether a defendant’s conduct was
unitary, we consider such factors as proximity in time and space, similarities, the sequencing
of the acts, intervening events, and the defendant’s goals for and mental state during each
act. Franco, 2005-NMSC-013, ¶ 7. “The proper analytical framework is whether the facts
presented at trial establish that the jury reasonably could have inferred independent factual
bases for the charged offenses.” Id. (internal quotation marks and citation omitted). We
therefore first review the elements of the charged offenses and then consider whether the
State presented sufficient facts at trial in order to support the elements of both crimes.
{14} Defendant was charged with trafficking a controlled substance contrary to NMSA
1978, Section 30-31-20 (2006). In order to prove that charge, the State was required to show
that Defendant intentionally manufactured methamphetamine. Section 30-31-20(A)(1), (B).
Defendant was also charged with possession of drug paraphernalia, which requires proof that
Defendant used or had intent to use drug paraphernalia “to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human
body a controlled substance.” NMSA 1978, § 30-31-25.1(A) (2001). Defendant’s primary
contention is that the jury used the same evidence to convict him of possession of the drug
paraphernalia and of manufacturing methamphetamine.
{15} We now turn to the evidence presented at trial. Three witnesses, Chief Jimmy
Chavez, Officer Dominic Smith, and Sergeant Clarence Gibson, testified as to what they saw
at the scene. These witnesses observed items including a pyrex bong, light bulbs, plastic
straws, razor blades, and plates. The light bulbs were altered in a manner typically
associated with smoking methamphetamine, and the straws were cut in a manner commonly
used for snorting methamphetamine. Smith explained that razor blades are typically used
to cut or crush methamphetamine crystals so that they can be smoked or inhaled. In addition
to these observations, two other witnesses testified that they actually consumed
methamphetamine with Defendant before the police arrived.
{16} Chavez, Smith, and Gibson also testified that they observed items that are known
to be used for the manufacture of methamphetamine. In Defendant’s house were large
quantities of batteries and coffee filters, a grinder with white powdery residue, glass
containers holding bi-layer liquids, fuel antifreeze, starter fluid, and taped rubber tubing.
Batteries are commonly dismantled and mixed with ephedrine during the manufacture of
methamphetamine, and grinders are used to crush ephedrine pills. Smith specifically
testified that the other listed items are often found in conjunction with the manufacture of
methamphetamine. Further, Gibson noticed that there were “several reactions in the process
of manufacturing in the residence.”
{17} Based on this evidence, we conclude that there were two types of items in
Defendant’s residence. Some of the items could be used to manufacture methamphetamine,
and those items support the trafficking charge. Other items could be used to consume
methamphetamine and marijuana, and those items support the paraphernalia charge. The
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items used to consume drugs were not necessary to manufacture methamphetamine, and they
supply the basis for conduct distinguishable from the conduct involved in manufacturing
methamphetamine. Defendant’s conduct, possessing drug paraphernalia related to personal
consumption and possessing items used specifically to manufacture methamphetamine, is
therefore sufficiently distinct. See Franco, 2005-NMSC-013, ¶ 7. We thus conclude that
Defendant’s conduct was not unitary and that “the jury reasonably could have inferred
independent factual bases for the charged offenses.” Id. (internal quotation marks and
citation omitted). Because Defendant’s conduct was not unitary, we conclude under the first
Swafford inquiry that double jeopardy principles were not violated. See State v. Saiz, 2008-
NMSC-048, ¶ 35, 144 N.M. 663, 191 P.3d 521.
C. PowerPoint Presentation
{18} Defendant argues that the district court abused its discretion by allowing a witness
to testify using a PowerPoint presentation describing the manufacture of methamphetamine.
Defendant contends that (1) the presentation was irrelevant because he was not charged with
using the manufacturing method that was described and (2) the testimony accompanying the
presentation used inflammatory or derogatory terms such as the “Nazi Dope Method” of
manufacture and “Beavis and Butthead” methamphetamine cooks.
We review the district court’s decision to admit evidence under an
abuse of discretion standard. An abuse of discretion relating to the admission
of evidence is measured by whether the district court’s ruling was clearly
untenable or not justified by reason, and by whether the ruling was clearly
against the logic and effect of the facts and circumstances of the case.
State v. Garcia, 2005-NMCA-042, ¶ 38, 137 N.M. 315, 110 P.3d 531 (internal quotation
marks and citations omitted).
{19} The PowerPoint presentation was demonstrative evidence. “New Mexico cases
define demonstrative evidence, also sometimes referred to as real evidence or evidence by
inspection, as such evidence as is addressed directly to the senses of the court or jury without
the intervention of the testimony of witnesses, as where various things are exhibited in open
court.” State v. Tollardo, 2003-NMCA-122, ¶ 10, 134 N.M. 430, 77 P.3d 1023 (internal
quotation marks and citation omitted). “Diagrams and exhibits to illustrate testimony are
admissible so long as they are not misleading.” Zemke v. Zemke, 116 N.M. 114, 122, 860
P.2d 756, 764 (Ct. App. 1993).
{20} The first part of Defendant’s argument is that the inclusion in the PowerPoint
presentation of the manufacturing step involving anyhdrous ammonia was error because no
anyhdrous ammonia was found in Defendant’s residence. In narrating the PowerPoint
presentation, Gibson testified as follows:
We’re going to put our metals inside with our ephedrine powder, and
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now we’re going to run out of town, and we’re going to go to a farm, and
we’re going to steal some anhydrous ammonia. Once we get our anhydrous,
bring it back in a proper container, we’re going to add it to the mixture, and
it’s going to dissolve that metal, which is going to give us our pure meth
base.
On cross-examination, Gibson acknowledged that no anhydrous ammonia was found in
Defendant’s residence. On redirect examination, Gibson testified that it was not necessary
to have anhydrous ammonia to manufacture methamphetamine. He further testified that
“[d]ue to the overwhelming smell and the dangers of anhydrous ammonia, we found it a
practice that that stage or process of the manufacturing for methamphetamine is done in an
outside area, say out in the county.”
{21} The PowerPoint presentation was used as context for Gibson’s subsequent testimony
regarding photographs of the actual items found in Defendant’s residence. It would have
been confusing to the jury if the depiction of the manufacturing process cut off before the
final steps, which would have included the use of anyhdrous ammonia. We see no abuse of
discretion in the district court’s permitting the entire manufacturing process to be described
as context for the items found.
{22} We now address Defendant’s second point regarding any prejudice that might have
stemmed from the language used in the presentation. Gibson, who had been accepted as an
expert in detection and recognition of methamphetamine laboratories, introduced the
PowerPoint presentation with the following testimony:
The slide show that I’m going to present to you is going to be the
basic chemical makeup and manufacturing process of methamphetamine via
the Birch method, or as we know it more commonly, the Nazi method. They
call it [the] Nazi dope method.
Later, Gibson testified:
You have two different types of cooks. You have your chemist
cooks, [who] have a lot of knowledge, a lot of knowledge in chemistry, a lot
of knowledge in glassware, appropriate beakers, things to use, then you have
what they know as a Beavis and Butthead cook. This is a person that learns
how to cook from other meth cooks. He reads it off the internet and uses any
household items that he can bring forth to manufacture his
methamphetamine.
{23} Defendant does not argue that the terms in question are not actually used in
connection with methamphetamine manufacture. Although terminology referring to Nazis
and Beavis and Butthead may carry negative connotations, these terms were not used
specifically in reference to Defendant. Gibson used the terms to make distinctions between
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the specific process depicted in his presentation and other processes, and between
methamphetamine manufacturers who have some expertise in chemistry and those who do
not. In these circumstances, we conclude that use of the terms in question did not prejudice
Defendant, and no abuse of discretion occurred.
III. CONCLUSION
{24} For the reasons set forth above, we reverse Defendant’s conviction for possession of
drug precursors and affirm his convictions for trafficking methamphetamine by manufacture
and possession of drug paraphernalia. We remand the case to the district court for
resentencing.
{25} IT IS SO ORDERED.
CELIA FOY CASTILLO, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
RODERICK T. KENNEDY, Judge
Topic Index for State v. Vance, No. 27,048
AE Appeal and Error
AE-FE Fundamental Error
CL Criminal Law
CL-CL Controlled Substances
CP Criminal Procedure
CP-DJ Double Jeopardy
EV Evidence
EV-DM Demonstrative Evidence
EV-PJ Prejudicial Evidence
ST Statutes
ST-CS Conflicting Statutes
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ST-IP Interpretation
ST-LI Legislative Intent
9