N.M. Stat. § 30-31-20 (2026)

A. As used in the Controlled Substances Act, "traffic" means the:

       (1)    manufacture of a controlled substance enumerated in Schedules I through
V or a controlled substance analog as defined in Subsection W of Section 30-31-2
NMSA 1978;

        (2)      distribution, sale, barter or giving away of:

              (a) a controlled substance enumerated in Schedule I or II that is a narcotic
drug;

         (b) a controlled substance analog of a controlled substance enumerated in
Schedule I or II that is a narcotic drug; or

              (c) methamphetamine, its salts, isomers and salts of isomers; or

        (3)      possession with intent to distribute:

              (a) a controlled substance enumerated in Schedule I or II that is a narcotic
drug;

         (b) controlled substance analog of a controlled substance enumerated in
Schedule I or II that is a narcotic drug; or

              (c) methamphetamine, its salts, isomers and salts of isomers.

   B. Except as authorized by the Controlled Substances Act, it is unlawful for a
person to intentionally traffic. A person who violates this subsection is:

      (1)   for the first offense, guilty of a second degree felony and shall be
sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
       (2)    for the second and subsequent offenses, guilty of a first degree felony and
shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

    C. A person who knowingly violates Subsection B of this section within a drug-free
school zone excluding private property residentially zoned or used primarily as a
residence is guilty of a first degree felony and shall be sentenced pursuant to the
provisions of Section 31-18-15 NMSA 1978.

History: 1953 Comp., § 54-11-20, enacted by Laws 1972, ch. 84, § 20; 1974, ch. 9, § 1;
1980, ch. 23, § 1; 1987, ch. 68, § 2; 1990, ch. 19, § 3; 2006, ch. 17, § 2.

                                     ANNOTATIONS

Cross references. — For instructions as to trafficking in controlled substances, see UJI
14-3110 NMRA et seq.

The 2006 amendment, effective July 1, 2006, added Subparagraph (c) to Paragraph
(2) of Subsection A to provide that traffic means distribution, sale, barter or giving away
of methamphetamine and its salts and isomers and added Subparagraph (c) to
Paragraph (3) of Subsection A to provide that traffic means the possession with intent to
distribute methamphetamine and its salts and isomers.

The 1990 amendment, effective July 1, 1990, substituted "Subsection W" for
"Subsection X" in Paragraph (1) and made minor stylistic changes in Paragraphs (2)
and (3) of Subsection A, and added Subsection C.

                         I.     GENERAL CONSIDERATION.

Advice about possible sentence enhancements. — Where the defendant entered a
no contest plea to trafficking cocaine; the district court informed the defendant that the
trafficking charge would be a second degree felony with a maximum basic sentence of
nine years and that the basic sentence could be enhanced under the habitual offender
statute if the defendant had any undisclosed prior felony convictions; the state filed
supplemental criminal information alleging that the defendant had three prior felony
convictions, two of which were trafficking offenses; there was no indication in the record
that before the defendant entered a plea of no contest to the three prior convictions that
the defendant was advised about a potential enhancement under the trafficking statute
or that the trafficking charge could be treated as a first degree felony with a basic
sentence of eighteen years, the court did not adequately and accurately advise the
defendant of the possible sentencing enhancements the defendant faced by pleading
no contest. Marquez v. Hatch, 2009-NMSC-040, 146 N.M. 556, 212 P.3d 1110.

Act not applicable. — Where defendant did not engage in extraction from substance of
natural origin or chemical synthesis, cultivating and growing psilocybin mushrooms,
even if by artificial means, is not prohibited by this section. State v. Pratt, 2005-NMCA-
099, 138 N.M. 161, 117 P.3d 967, cert. denied, 2005-NMCERT-008, 138 N.M. 328, 119
P.3d 1265.

Title constitutional. — The title of Laws 1972, Chapter 84, of which this section is a
part, does not violate N.M. Const., art. IV, § 16, by embracing more than one subject,
because although the act also amends sections of the state Drug and Cosmetic Act
(Drug, Device and Cosmetic Act, 26-1-1 NMSA 1978), the amendments are all
concerned with drugs. State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180.

Defendant's contention that this section violated N.M. Const., art. IV, § 16, because it is
concerned with trafficking in controlled substances, while title of the act of which it is a
part does not include trafficking, was without merit since prohibition on trafficking was a
detail germane to drugs, their administration and penalties. State v. Romero, 1974-
NMCA-015, 86 N.M. 99, 519 P.2d 1180.

Title of act constitutional. — Sections 30-31-21 to 30-31-25 NMSA 1978, which define
unlawful activities and provide penalties, are not unconstitutional because "unlawful
activities" are not mentioned in the title of the act. State v. Atencio, 1973-NMCA-110, 85
N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.

Constitutionality. — Subsection A(3) is not unconstitutionally overbroad, as it does not
sweep within its ambit actions that would ordinarily be deemed to be constitutionally-
protected activities. State v. Curry, 1988-NMCA-031, 107 N.M. 133, 753 P.2d 1321,
cert. denied, 107 N.M. 132, 753 P.2d 1320.

Special laws prohibited. — Section 30-31-20B(2) NMSA 1978 applies to all second
and subsequent trafficking offenses, and, therefore, does not violate the prohibition
against special laws of N.M. Const., art. IV, § 24; nor does it violate the requirements of
equal protection. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert.
quashed, 104 N.M. 54, 716 P.2d 245 (1986).

Section applicable to physician. — This section applies to a physician who gives out
drugs for something other than a legitimate medical purpose. State v. Carr, 1981-
NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and
cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other
grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part,
1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Delivery which is effected by a physician which is not for a legitimate medical purpose is
not excepted from the prohibitions of the Controlled Substances Act. When a physician
acts without any legitimate medical purpose and beyond the course of professional
practice by selling prescriptions that allow the bearer to obtain controlled substances,
his conduct should be treated like that of any street-corner pill pusher. State v. Carr,
1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d
1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981),
overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d
92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Miranda warnings from informer unnecessary. — Claim that defendant should have
been given Miranda warnings immediately prior to selling heroin to informer, who was
accompanied by an undercover policewoman, was without merit. State v. Anaya, 1969-
NMCA-120, 81 N.M. 52, 462 P.2d 637.

Sections not inconsistent. — There is no conflict between Section 30-31-22A NMSA
1978 which excludes narcotic drugs enumerated in Schedule I, such as heroin, from its
purview, and this section, under which trafficking in narcotic drugs is prohibited. State v.
Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513
P.2d 1265.

Plain meaning of this section should be given effect, unless this leads to an absurd
or unreasonable result. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801,
cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Heroin is narcotic drug as matter of law. State v. Gonzales, 1974-NMCA-080, 86
N.M. 556, 525 P.2d 916, overruled on other grounds by State v. Bender, 1978-NMSC-
044, 91 N.M. 670, 579 P.2d 796 (decided under prior law).

Because there is no evidence that defendant engaged in "extraction from
substances of natural origin or chemical synthesis" as defined by Section 30-31-2
M NMSA 1978, his acts of cultivating or growing mushrooms, even if by artificial means,
are not prohibited by Subsection A(1) of this section. State v. Pratt, 2005-NMCA-099,
138 N.M. 161, 117 P.3d 967, cert. denied, 2005-NMCERT-008, 138 N.M. 163, 117 P.3d
967.

Attempt to acquire by misrepresentation not more specific statute. — A defendant
charged with attempt to traffic cocaine under Subsection A of this section was not
entitled to be charged under Section 30-31-25A(3) NMSA 1978 ("attempt to acquire
controlled substance by misrepresentation") since the elements defined in both offenses
are so distinct that the specific-statute doctrine does not apply. State v. Villalobos, 1995-
NMCA-105, 120 N.M. 694, 905 P.2d 732, cert. quashed, 121 N.M. 676, 916 P.2d 1343
(1996).

Trafficking committed irrespective of manufacturer's intention. — The crime of
trafficking by manufacturing is committed irrespective of any consideration of whether
the manufacturer intended to distribute the controlled substance or keep it for his or her
personal use. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert.
denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.

Entrapment submitted to jury. — Issue of entrapment in prosecution for selling and
distribution of heroin was properly submitted to the jury, where the evidence raised a
factual question concerning defendant's predisposition to sell or distribute heroin and
concerning the extent of agent's activity in connection with the heroin. State v. Wilson,
1974-NMCA-059, 86 N.M. 348, 524 P.2d 520.

Severance not necessary. — It was not error for the trial court to refuse to grant
motion for severance where defendant was charged with having made three sales to
the same individual in the same community and all within a comparatively short period
of time, and no prejudice to defendant had been shown. State v. Riordan, 1974-NMCA-
013, 86 N.M. 92, 519 P.2d 1029.

First offense punishable as second degree felony. — Sentence of 10 to 50 years
imposed on defendant, convicted of trafficking prior to the 1974 amendment to this
section, was proper; as the statute then declared the crime to be a second degree
felony, Section 31-18-11 NMSA 1978 (now repealed), making a "felony" as to which a
penalty is not specified a fourth degree felony, was not applicable. State v. Herrera,
1974-NMSC-037, 86 N.M. 224, 522 P.2d 76 (decided under prior law).

Procedure upon conviction of subsequent offense. — Upon proof that a conviction
is a second or subsequent conviction for trafficking, Subsection B requires that the
previous sentence be vacated and that the sentence imposed by law be imposed. State
v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert. quashed, 104 N.M. 54,
716 P.2d 245 (1986).

Notice prior to sentencing as second offender. — Although former narcotic drug
statute failed to specify the precise manner in which a prior conviction was to be brought
to the attention of the defendant and the court, essential fairness required that there be
some pleading filed by the state, whether it be by motion or otherwise, by which a
defendant would be given notice and opportunity to be heard before an increased
penalty could be imposed. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d
214, appeal after remand, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47; State v.
Santillanes, 1981-NMSC-064, 96 N.M. 477, 632 P.2d 354.

Since there was never any charge filed against defendant which would give him notice
that, if convicted, he would be sentenced as a second offender, and even though no
objection was made by the defendant or his counsel to the questioning by the court as
to the prior conviction, sentencing him as a second offender was a denial of due
process of law, in that there was no notice or true opportunity to be heard, in a
constitutional sense. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214,
appeal after remand, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47.

Enhancement proceeding. — When an enhancement proceeding is brought after the
defendant has begun serving his sentence on the most recent convictions, there is no
violation of either the right of due process or the right against double jeopardy, even in
the absence of statutory authorization of such a procedure. State v. Santillanes, 1981-
NMSC-064, 96 N.M. 477, 632 P.2d 354.
Since defendant's prior convictions for cocaine trafficking and possession of marijuana
with intent to distribute resulted from a single arrest, the court did not make an
impermissible "double use" of the prior convictions by utilizing the prior cocaine
trafficking conviction to enhance the defendant's present cocaine trafficking conviction
to a first degree felony pursuant to Section 30-31-20B(2) NMSA 1978, and then using
the other prior conviction for possession of marijuana to enhance defendant's sentence
under the general habitual-offender statute, Section 31-18-17 NMSA 1978. State v.
Hubbard, 1992-NMCA-014, 113 N.M. 538, 828 P.2d 971, cert. denied, 113 N.M. 352,
826 P.2d 573.

Conditional discharge is not a prior offense for enhancement purposes. — Where
defendant received a conditional discharge dismissing his first drug trafficking offense,
and four years later was arrested and charged with trafficking methamphetamine, the
conditional discharge could not be considered a prior offense for purposes of
enhancement, because a conditional discharge entered without an adjudication of guilt
is not considered a conviction. State v. Lassiter, 2016-NMCA-078, cert. denied.

When federal offense is prior conviction. — State convictions of trafficking of a
controlled substance are "subsequent" to a federal conviction since the elements
necessary to prove the federal offense are the same as those required to prove the
state charges. Therefore, the federal offense is a prior conviction for purposes of the
penalty provisions of the Controlled Substances Act. State v. Garduno, 1979-NMSC-
072, 93 N.M. 335, 600 P.2d 281.

Applicability of habitual offender statute. — In 1983 the habitual offender statute
was amended to include persons convicted of narcotics offenses, overruling that part of
State v. Lujan, 1966-NMSC-051, 76 N.M. 111, 412 P.2d 405, which held that the
Habitual Offender Act (Habitual Criminal Act) did not apply to persons convicted under
the Controlled Substances Act. Minner v. Kerby, 30 F.3d 1311 (10th Cir. 1994).

         II.    ELEMENTS OF TRAFFICKING CONTROLLED SUBSTANCE.

Proof of knowledge of drug-free school zone required. — The term "knowingly" in
Subsection C of Section 30-31-20 NMSA 1978 requires specific knowledge that the
offense of trafficking controlled substances will occur within the drug-free school zone,
and the state must prove knowledge of the drug-free school zone as an essential
element of distributing drugs in a drug-free school zone. State v. Wilson, 2010-NMCA-
018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227
P.3d 1055.

Where undercover police officers stopped defendant and asked defendant for drugs;
defendant told the officers that defendant was going to buy drugs down the street;
defendant left and returned with a third person to the officers’ car; the third person sold
cocaine to the officers; the sale occurred within a drug-free school zone; and there was
no evidence that defendant knew that the sale of the drugs would occur within a drug-
free school zone, the evidence was insufficient to support defendant’s conviction of
conspiracy to traffic cocaine within a drug-free school zone. State v. Wilson, 2010-
NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M.
673, 227 P.3d 1055.

Section does not require specific intent. — Trafficking in a controlled substance by
distribution is not a specific intent crime. Since this section prohibiting trafficking by
"distribution, sale, barter or giving away any controlled substance . . . which is a narcotic
drug" only describes a particular act without reference to a defendant's intent to do
some further act or achieve some additional consequence, the crime is properly one of
general intent. State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.

Trafficking by distribution is not a specific intent crime. State v. Turner, 1981-
NMCA-144, 97 N.M. 575, 642 P.2d 178, cert. quashed, 98 N.M. 51, 644 P.2d 1039
(1982).

Elements of offense of transferring controlled substance. — In order to find a
defendant guilty of transferring a controlled substance, the state must prove beyond a
reasonable doubt that: (1) the defendant transferred a controlled substance; (2) the
defendant knew or believed it was a controlled substance; and (3) the transfer occurred
in New Mexico on a particular date. Martinez v. State, 1978-NMSC-051, 91 N.M. 747,
580 P.2d 968.

Knowledge of presence and narcotic character of drug essential. — In a
prosecution for trafficking in narcotics, the state must prove that defendant knew of the
presence and narcotic character of the object possessed. State v. Gonzales, 1974-
NMCA-080, 86 N.M. 556, 525 P.2d 916, overruled on other grounds by State v. Bender,
1978-NMSC-044, 91 N.M. 670, 579 P.2d 796.

Knowledge with control. — Since he was not in physical possession of the heroin
when it was found by the officers, to be convicted defendant must have constructively
possessed it, that is, he must have had knowledge of the presence of the heroin and
control over it. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert.
denied, 90 N.M. 636, 567 P.2d 485.

Ownership not element. — This section prohibits a defendant from transferring
narcotics by way of distribution, sale, barter, or gift: Ownership is not an element. State
v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303, cert. denied, 104 N.M.
201, 718 P.2d 1349.

                              III.   DOUBLE JEOPARDY.

Trafficking methamphetamine by manufacture and possession of drug
paraphernalia. — Where the defendant was convicted of trafficking methamphetamine
by manufacture for possession of items that could be used to manufacture
methamphetamine and possession of drug paraphernalia for possession of items that
could be used to consume methamphetamine and marijuana, and where the items used
to consume drugs were not necessary to manufacture methamphetamine, the
defendant’s conduct was not unitary and the defendant’s convictions did not violate
double jeopardy. State v. Vance, 2009-NMCA-024, 145 N.M. 706, 204 P.3d 31, cert.
denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

Double jeopardy. — Since marijuana is not defined as a narcotic drug, trial court
acquired no jurisdiction when defendant was charged with violating this section by
selling marijuana, hence, there was no basis for a claim of double jeopardy where
defendant was later charged under the proper section. State v. Mabrey, 1975-NMCA-
098, 88 N.M. 227, 539 P.2d 617.

The defendant's distribution of drug samples and subsequent distribution of larger
quantities of the same drugs to the same persons constituted separate transaction
under this section and convictions on distinct counts of trafficking a controlled substance
did not violate double jeopardy. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M.
401, 912 P.2d 277, cert. denied, 121 N.M. 375, 911 P.2d 883.

Where a trial court convicted defendant of one count of a second offense of trafficking a
controlled substance and one count of conspiracy to commit that offense, and in
sentencing defendant, the trial court used defendant's prior convictions twice to increase
the punishment, the prior trafficking conviction could not be used to set defendant's
underlying conspiracy to commit trafficking conviction as a second degree felony, and
then be used to enhance defendant's sentence under the habitual offender statute.
State v. Lacey, 2002-NMCA-032, 131 N.M. 684, 41 P.3d 952, cert. denied, 131 N.M.
737, 42 P.3d 842.

Convictions for trafficking controlled substances with intent to distribute and
conspiracy based on a single act. — Where defendant was convicted of trafficking a
controlled substance by possession with intent to distribute in violation of Subsection A
of this section and conspiracy to commit the same crime in violation of 30-28-2 NMSA
1978, both charges based on evidence of a single sale of drugs by defendant; the
defendant’s conduct underlying both crimes was unitary, and the state relied on the
same evidence, the single sale of drugs from defendant to the co-conspirator, as the
basis to convict for both crimes; the defendant was convicted twice and is being
punished twice for the same offense, resulting in a double jeopardy violation. State v.
Silvas, 2015-NMSC-006, aff’g 2013-NMCA-093, 310 P.3d 621.

Merger with charge of conspiracy to racketeer. — In order for the jury to have
convicted defendant of conspiracy to racketeer pursuant to the court's instruction, it was
also necessary for the state to prove, and the jury to find, that she and another
conspired to traffic by manufacture. Thus, the two offenses for which defendant was
convicted merged under the facts and circumstances of the case. State v. Wynne,
1988-NMCA-106, 108 N.M. 134, 767 P.2d 373, cert. denied, 108 N.M. 115, 767 P.2d
354 (1989).
Possession deemed lesser offense. — Possession of heroin is a lesser offense
included within the offense of possession with intent to distribute heroin. State v.
Alderete, 1977-NMCA-130, 91 N.M. 373, 574 P.2d 592, cert. denied, 91 N.M. 491, 576
P.2d 297 (1978).

Separate offenses. — As there is no ambiguity in this section, which prohibits the sale
of "any" controlled substance, where evidence showed sales to two separate people,
there were two offenses and consecutive sentences received by defendant did not
constitute an abuse of the trial court's discretion. State v. Burrell, 1976-NMCA-025, 89
N.M. 64, 547 P.2d 69.

Drug trafficking statute authorizes separate prosecution and punishment for
distinct transfers of controlled substances. — Where defendant was convicted of
trafficking cocaine by distribution and possession of cocaine with intent to distribute, his
constitutional right to be free from double jeopardy was not violated, because the
legislature clearly intended, in its enactment of 30-31-20 NMSA 1978 criminalizing drug
trafficking, to authorize separate prosecution and punishment for each individual
transfer or delivery under the circumstances where the transfer is not
contemporaneous, and the evidence presented at trial showed that defendant’s
convictions arose from two separate transfers of a controlled substance, where in each
exchange defendant transferred a distinct quantity of cocaine to the undercover officer
in exchange for a distinct sum of money. State v. Bello, 2017-NMCA-049, cert. denied.

                             IV.    EVIDENCE AND PROOF.

                                   A.     IN GENERAL.

Inference of knowledge of presence of drugs. — While knowledge of the presence of
drugs may be inferred where exclusive possession of the premises is shown, where
exclusive possession is not shown, additional evidence is required to support such an
inference. State v. Becerra, 1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246, cert.
denied, 112 N.M. 440, 816 P.2d 509.

Inference of control of drugs. — Control of the premises on which contraband is
found is not sufficient to support a determination of criminal liability. There must be
knowledge of the presence of the contraband, and there must be evidence sufficient to
support an inference of control of the contraband. State v. Becerra, 1991-NMCA-090,
112 N.M. 604, 817 P.2d 1246, cert. denied, 112 N.M. 440, 816 P.2d 509.

Constructive possession. — Constructive possession is sufficient to convict for
trafficking by possession with intent to distribute. State v. Zamora, 2005-NMCA-039,
137 N.M. 301, 110 P.3d 517, cert. quashed, 2005-NMCERT-012, 138 N.M. 772, 126
P.3d 1136.

Narcotic character. — The burden of proof was on the defendant to prove that
substance identified as heroin was not a narcotic drug as an exemption or exception.
State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M.
483, 513 P.2d 1265.

Proving intent by inference. — Intent may be proved by inference from the
surrounding facts and circumstances, such as the quantity and manner of packaging of
the controlled substance. State v. Muniz, 1990-NMCA-105, 110 N.M. 799, 800 P.2d
734, cert. denied, 110 N.M. 749, 799 P.2d 1121.

Proving knowledge of narcotic character. — While there is no requirement that proof
of possession with knowledge of narcotic character should be by direct or
uncontradicted evidence, nevertheless, the evidence must be such as discloses some
conduct, declarations or actions on the part of the defendant sufficient to satisfy the fact
finder beyond a reasonable doubt that he had knowledge of the presence and nature of
the narcotics. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210, overruled
on other gounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Proof of possession of controlled substance may be established by evidence of the
conduct and actions of a defendant, and by circumstantial evidence connecting the
defendant with the crime. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666
P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.

When inference of constructive possession proper. — Since defendant's wife
resided with him, he was not in exclusive possession of the premises, and an inference
of constructive possession could not be drawn against him unless there were
incriminating statements or circumstances tending to support the inference. State v.
Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567
P.2d 485.

Admission of gun evidence was harmless error. — Where defendant was charged
with trafficking a controlled substance, tampering with evidence, resisting, evading, or
obstructing an officer, and possession of drug paraphernalia after law enforcement
officers conducted a traffic stop, during which defendant was found with a large amount
of money on his lap and sixty-three small baggies of crack cocaine, and subsequently
searched defendant's home, finding a .380 caliber semi-automatic pistol, several small
zip-lock baggies, several digital scales, and a brown bag with small zip-lock baggies
inside, and where, at trial, defendant objected to the admission of evidence that a gun
was found at his residence, claiming that he was not armed at the time of his arrest and
that the gun evidence created the impression that he was dangerous and that, in turn,
encouraged the jury to convict him of trafficking a controlled substance rather than
simple possession, the admission of the gun evidence, assuming error, was harmless. It
was doubtful that the admission of the gun evidence had any probable impact on the
jury's deliberations regarding trafficking versus possession, considering the evidence
that defendant was apprehended with sixty-three baggies of crack cocaine, individually
packaged, indicating that the drugs were intended for sale to individuals, in addition to
the discovery of digital scales and empty small baggies at defendant's residence. State
v. Jackson, 2021-NMCA-059, cert. denied.
                        B.     CIRCUMSTANTIAL EVIDENCE.

Conviction sustained by circumstantial evidence. — A conviction for trafficking in a
controlled substance can be sustained by circumstantial evidence. State v. Chouinard,
1981-NMSC-096, 96 N.M. 658, 634 P.2d 680, cert. denied, 456 U.S. 930, 102 S. Ct.
1980, 72 L. Ed. 2d 447 (1982).

Circumstantial evidence is sufficient to support a conviction for possession of heroin
with an intent to distribute where the defendant was caught with a small amount of
heroin, there is an inference that more heroin was flushed down a toilet, and there was
paraphernalia at the scene of the arrest consistent with distribution of heroin. State v.
Bejar, 1984-NMCA-031, 101 N.M. 190, 679 P.2d 1288, cert. denied, 101 N.M. 189, 679
P.2d 1287; State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, cert.
quashed, 104 N.M. 54, 716 P.2d 245.

Circumstantial evidence on nature of substance. — Although there was no direct
scientific evidence that the substance which defendant was convicted of trafficking in by
possession with intent to distribute was heroin, there was substantial, almost
overwhelming, circumstantial evidence to that effect, which was sufficient to sustain the
convictions. State v. Armijo, 1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.

Inference of trafficking from amount of drug found. — Evidence that the heroin
found weighed 3.3 grams and was 16% pure while street heroin is usually 3% to 5%
pure and packaged in weights of 20 to 40 milligrams, that reduction of the heroin to
street purity packaged for street sale would result in at least 264 caps of heroin, that
heroin is generally packaged for resale on the street in small tinfoil packets such as
were found and that search failed to disclose paraphernalia indicating use of the heroin
on the premises, permitted the inference that defendant intended to distribute the
heroin. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90
N.M. 636, 567 P.2d 485.

Proof of possession of a large quantity of a controlled substance, inconsistent with
personal use, is sufficient proof of trafficking in a controlled substance. State v.
Donaldson, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53,
665 P.2d 809.

Amount of drug inconsistent with personal use. — If the amount of an illegal drug
found in an accused's possession is not by itself sufficient to prove inconsistency with
personal use, then the state must present testimony that the amount of drugs in the
accused's possession is inconsistent with personal use or that the other items found in
possession of the accused, such as drug paraphernalia or significant sums of cash,
showed that the accused intended to transfer drugs. State v. Hubbard, 1992-NMCA-
014, 113 N.M. 538, 828 P.2d 971, cert. denied, 113 N.M. 352, 826 P.2d 573.

Using weight alone to show intent to distribute. — Where there was no evidence of
the concentration of the drug, and no evidence of how long it would normally take a
single drug user to consume a given quantity, the weight of the amount recovered (just
under two ounces) could not in itself enable a fact finder to conclude, beyond a
reasonable doubt, that defendant intended to distribute the substance. State v. Becerra,
1991-NMCA-090, 112 N.M. 604, 817 P.2d 1246, cert. denied, 112 N.M. 440, 816 P.2d
509.

Conspiracy to traffic. — The size (one-half to one ounce amounts), frequency (nine
transactions in approximately seven weeks) and manner of the transactions (cash, after
the receipt of a phone call) were evidence sustaining defendant's conviction for
conspiracy with two others to traffic in heroin, and the jury could properly conclude that
the heroin defendant supplied was for resale. State v. Armijo, 1976-NMCA-125, 90 N.M.
10, 558 P.2d 1149.

                         C.      SUFFICIENCY OF EVIDENCE.

Evidence of trafficking by possession was sufficient. — Where a police officer
found defendant passed out in a car; when defendant stepped out of the car, a plastic
bag containing crack cocaine fell out of defendant’s purse; the officer arrested
defendant and conducted inventory searches of the car; the officer found two separate
amounts of cash totaling $520, a crack pipe, a second bag containing nineteen "rocks"
of crack cocaine, three cell phones and baggies in the console of the car; the car was
owned by defendant and defendant was the sole occupant of the car; and an expert
witness testified that based on the amount of cocaine, baggies, multiple cell phones and
amount of cash found in the car, defendant was a trafficker, there was sufficient
evidence to support defendant’s conviction of trafficking by possession with intent to
distribute cocaine. State v. Rael-Gallegos, 2013-NMCA-092, cert. denied, 2013-
NMCERT-009.

Sufficient evidence of trafficking fentanyl. — Where defendant was charged with
trafficking controlled substances, sufficient evidence supported the jury’s conclusion that
defendant intended to traffic fentanyl where, at trial, the state produced evidence of 421
fentanyl pills discovered in a backpack that defendant was seen wearing and that was
found in his car, the officer’s testimony that 400 plus pills would not be “personal use”
for a user, two digital scales discovered in the residence and one in the car, the officer’s
testimony that scales can indicate trafficking, a shotgun discovered in the car, the
officer’s testimony that guns may indicate trafficking, the law enforcement officers’
investigation of the residence that showed heavy traffic, with individuals staying for a
very short time, which the officer also testified could indicate trafficking, and defendant
attempting to flee the residence, which the state argued showed consciousness of guilt.
State v. Paglinawan, 2026-NMCA-044.

Sufficient evidence to convict of manufacturing methamphetamine. — Where a
police officer was dispatched to investigate a trash fire; the officer observed bottles of
acetone in the burnt trash pile; the officer discovered a meth lab in the house near the
trash fire; the officer discovered mail in the house with defendant’s name on it; two
persons who were on the property stated that defendant lived in the house; one person
testified that defendant used Sudafed and the acetone to make methamphetamine, and
that the person had obtained methamphetamine from defendant on the day the officer
discovered the meth lab; and the other person testified that defendant had been at the
house on the morning the officer discovered the meth lab, the evidence was sufficient to
permit the jury to reasonably infer that defendant manufactured methamphetamine.
State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, cert. denied, 2010-
NMCERT-007, 148 N.M. 611, 241 P.3d 612.

Sufficient evidence. — Where defendant quoted a price for methamphetamine to two
contacts who wanted to sell the methamphetamine to undercover police officers; the
contacts left defendant to meet the officers to confirm that the price was acceptable; the
contacts returned to defendant and purchased the methamphetamine; and the contacts
then delivered the methamphetamine to the officers in a public school parking lot, there
was sufficient evidence to convict defendant, as a principal, of causing the transfer of
methamphetamine in a drug free zone. State v. Montes, 2007-NMCA-083, 142 N.M.
211, 164 P.3d 102.

Sufficient evidence of trafficking cocaine by distribution and by possession with
intent to distribute. — Where defendant was convicted of trafficking cocaine by
distribution and by possession with intent to distribute, there was sufficient evidence to
support defendant’s convictions where the state presented evidence that the
undercover officer gave an intermediary a $20 bill and watched as defendant removed
an unknown substance from his mouth, gave it to the intermediary in exchange for the
buy money, and the intermediary returned and gave the officer a package containing a
small rock, which later tested positive as cocaine, and evidence that defendant sold the
officer a second rock for $10 after the officer complained about the small size of the first
rock of cocaine, from which a jury could reasonably infer that defendant was in
possession of the first rock of cocaine and intended to transfer it to the officer through
the intermediary and that defendant transferred the second rock of cocaine directly to
the undercover officer. State v. Bello, 2017-NMCA-049, cert. denied.

Sufficient evidence of trafficking controlled substances. — Where defendant was
charged with trafficking methamphetamine and distribution of synthetic cannabinoids
after the state alleged that an accomplice, at the direction of defendant, delivered
methamphetamine and synthetic cannabinoids hidden in deodorant sticks to an inmate
confined in the Curry county detention center, there was sufficient evidence to sustain
defendant's convictions beyond a reasonable doubt where the state presented evidence
of recorded phone calls between defendant and the inmate where, according to
testimony by the investigating officer, the two men used code words to discuss that
defendant was going to obtain illegal narcotics by using the inmate's money from the
jail, hide the narcotics in hygiene products, and send the hygiene products into the jail
through a third person, and evidence that an inspection of the hygiene products at issue
contained a green leafy substance and crystal-like substance wrapped in small baggies
in the bottom of deodorant sticks, which were later identified as methamphetamine and
synthetic cannabinoids. State v. Salazar, 2018-NMCA-030, cert. denied.
Sufficient evidence of conspiracy to commit drug trafficking. — Where defendant
was convicted by a jury of conspiracy to commit drug trafficking, there was sufficient
evidence to support the conviction where evidence established that defendant was
associated with a methamphetamine trafficking organization known as the AZ Boys, that
the organization was run by defendant's boyfriend and his brother, that defendant had
asked a friend, who later became a police informant, to transport drugs, that the
informant made several trips transporting drugs with defendant and her boyfriend in
exchange for cash and drugs, and that law enforcement recovered four pounds of
methamphetamine from the spare tire of the truck the informant had driven for the
organization, and, based on evidence that defendant had options available to her other
than committing the offense, a rational jury could have determined beyond a reasonable
doubt that defendant did not act under duress. State v. Catt, 2019-NMCA-013, cert.
denied.

Overt act for attempt to manufacture methamphetamine. — Defendant's acts,
including obtaining and possessing suspiciously large amounts of pseudoephedrine and
iodine, by traveling to Clovis to obtain inexpensive iodine, renting a motel room where
unpackaged pseudoephedrine was stored, and smoking methamphetamine in a room
containing over 5,000 pseudoephredrine pills, are sufficient to constitute an overt act in
furtherance of the manufacture of methamphetamine. State v. Brenn, 2005-NMCA-121,
138 N.M. 451, 121 P.3d 1050, cert. denied, 2005-NMCERT-010, 138 N.M. 494, 122
P.3d 1263.

Conviction despite no actual possession. — Defendant failed to effect the crime of
possession with intent to distribute because he never actually possessed the package
containing cocaine which was addressed to him; nevertheless, the fact that he never
actually possessed the package did not negate his intent to possess the package, as
evidenced by his attempting to pick up the package, nor did it negate his intent to
distribute the cocaine, as is evidenced by the amount of cocaine found in the package.
Therefore, he was properly convicted of attempted trafficking under Section 30-28-1
NMSA 1978 and Subsection A(3) of this section. State v. Curry, 1988-NMCA-031, 107
N.M. 133, 753 P.2d 1321, cert. denied, 107 N.M. 132, 753 P.2d 1320.

When the evidence shows a third party engaging in drug trafficking by possession with
intent to distribute a narcotic drug, and the defendant is the third party's accomplice, the
evidence is sufficient to support a conviction under Subsection A(3). The fact defendant
never touched the cocaine and was often not in the same room where the drug deal
took place is not controlling. State v. Bankert, 1994-NMSC-052, 117 N.M. 614, 875 P.2d
370.

There was sufficient evidence for conviction since it was shown that the defendant was
the owner of the premises from which the sale of illegal drugs was carried out in her
presence and within her view. State v. Chandler, 1995-NMCA-033, 119 N.M. 727, 895
P.2d 249, cert. denied, 119 N.M. 617, 894 P.2d 394.
Expert testimony identifying substance. — Direct testimony by expert that he
analyzed substance according to standard tests and found it to be morphine was
sufficient evidence that the substance, which had been sold by defendant, was
morphine, despite the fact that on cross-examination the expert did not remember
specifically which tests he had used, nor how many different tests he conducted. State
v. Baca, 1970-NMCA-075, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472
P.2d 984.

Sufficient evidence to convict. — Where (1) defendant "transferred cocaine to
another"; (2) defendant "knew that it was cocaine or believed it to be cocaine or
believed it to be some drug or other substance the possession of which is regulated or
prohibited by law"; and (3) "this happened in New Mexico on or about the 21st day of
July, 1994" there was sufficient evidence to convict. State v. Cooper, 1998-NMCA-180,
126 N.M. 500, 972 P.2d 1, cert. denied, 126 N.M. 532, 972 P.2d 351.

The following substantial evidence supports a conviction for trafficking cocaine with
intent to distribute: (1) testimony that people came to the motel door asking for
defendant; (2) the presence of a digital scale and razor blade indicating that cocaine
was being cut and weighed for distribution; (3) evidence that a portion of the crack
cocaine was ready for sale while another bundle was not yet cut in the bathroom; (4)
defendant's presence in the bathroom area; and (5) the testimony of one of the
detectives that the quantity seized and the drug paraphernalia were consistent with
trafficking. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, cert.
quashed, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Identity of substance a jury question. — Evidence that defendant stated he had
brought five vials of morphine to an arranged meeting, that the vial sold, which was
sealed and contained a yellowish liquid labeled dilaudid HCL, was taken from the same
pocket as other vials and looked the same as others tested and shown to contain a
morphine derivative, along with defendant's statement that he had injected the contents
of a vial several hours before and was still feeling the effects, and fact that one of the
users of the contents of the vial in question claimed to experience a "tingly feeling" was
sufficient to present a jury question as to whether the contents of the vial sold were a
controlled substance, and being substantial was sufficient to sustain conviction. State v.
Burrell, 1976-NMCA-025, 89 N.M. 64, 547 P.2d 69.

Inference of trafficking from possession by nonuser. — Where evidence showed
that defendant was in possession of more than 30 caps of heroin, while defendant
himself testified that he was not and had never been a heroin user, the only possible
inference was that defendant, at the least, intended to give the heroin away, and this
evidence was sufficient to conclude that he was trafficking in heroin. State v. Quintana,
1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 28, 536 P.2d
1085, and cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).

Attempted trafficking of cocaine. — Defendant was properly convicted for attempted
trafficking in cocaine since he committed the overt acts of accepting a sizeable amount
of cash from an undercover narcotics officer and engaging in prior discussion of the
illicit transaction. State v. Green, 1993-NMSC-056, 116 N.M. 273, 861 P.2d 954.

Purchaser not guilty of solicitation to traffic. — Even though the defendant's actions
in negotiating for the purchase of drugs fall within the definition of criminal solicitation,
his conduct was necessarily incidental to the crime of trafficking through the sale of a
controlled substance and he could not be guilty of solicitation to traffic. State v. Pinson,
1995-NMCA-045, 119 N.M. 752, 895 P.2d 274.

Growing marijuana. — Growing marijuana, without more, does not support a charge of
trafficking in marijuana by manufacture. State v. Shaulis-Powell, 1999-NMCA-090, 127
N.M. 667, 986 P.2d 463, cert. denied, 127 N.M. 391, 981 P.2d 1209.

Sufficient evidence. — Where a police officer conducted a search incident to the arrest
of defendant for DWI; the officer found a uniquely folded dollar bill in defendant’s
pocket; the officer unfolded the dollar bill and uncovered a white, powdery substance
that was later confirmed to be cocaine; and the officer testified that dollar bills were
often used as a way to conceal and later ingest cocaine, the evidence was sufficient for
a reasonable jury to conclude that the evidence found on defendant was cocaine and
that based on the way the dollar bill was folded and its location in defendant’s pocket,
defendant was aware that the substance was cocaine or another controlled substance.
State v. Armendariz-Nunez, 2012-NMCA-041, 276 P.3d 963, cert. denied, 2012-
NMCERT-003.

                       V.     INDICTMENT AND INFORMATION.

Indictment charging alternatives. — Where an indictment charged that the
defendants "did intentionally distribute, possess with intent to distribute, or aided and
abetted one another in the distribution of a controlled substance," the indictment gave
each defendant notice that he must defend against each of these alternatives. State v.
Turner, 1981-NMCA-144, 97 N.M. 575, 642 P.2d 178, cert. quashed, 98 N.M. 51, 644
P.2d 1039 (1982).

Failure of indictment to refer to Subsection B does not render it invalid. State v.
Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460.

                              VI.    JURY INSTRUCTIONS.

Jury instruction for attempt to manufacture. — The jury was properly instructed that
it could convict defendant of attempt to manufacture methamphetamine under the
theory of accessory liability if it found, beyond a reasonable doubt, that defendant
intended that the crime of manufacturing be committed, an attempt to commit the crime
was committed, and defendant helped, encouraged or caused the attempt to commit the
crime. State v. Brenn, 2005-NMCA-121, 138 N.M. 451, 121 P.3d 1050, cert. denied,
2005-NMCERT-010, 138 N.M. 494, 122 P.3d 1263.
Instructing on lesser included offense. — Although possession of heroin is a lesser
included offense of trafficking in heroin, it should not be instructed on when the
evidence does not support the defendant's claim that possession was the highest crime
which occurred. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303,
cert. denied, 104 N.M. 201, 718 P.2d 1349.

Although possession is not an element of trafficking by manufacture and a jury
instruction on possession was not required to be given with the instruction on trafficking
by manufacture, where possession is an issue in dispute, it would be error not to give
the instruction on possession. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137
P.3d 659, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Law reviews. — For note and comment, "State v. Urioste: A Prosecutor's Dream and
Defendant's Nightmare," see 34 N.M. L. Rev. 517 (2004).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M. L. Rev.
63 (1974).

For article, "Evidence II: Evidence of Other Crimes as Proof of Intent," see 13 N.M.L.
Rev. 423 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and
Poisons §§ 179, 181, 187, 188, 191.

Validity and construction of statute creating presumption or inference of intent to sell
from possession of specified quantity of illegal drugs, 81 A.L.R.3d 1192.

Competency of drug addict or user to identify suspect material as narcotic or controlled
substance, 95 A.L.R.3d 978.

Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs
were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.

Entrapment as defense to charge of selling or supplying narcotics where government
agents supplied narcotics to defendant and purchased them from him, 9 A.L.R.5th 464.

Validity, construction, and application of state laws imposing tax or license fee on
possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.

State law criminal liability of licensed physician for prescribing or dispensing drug or
similar controlled substance, 13 A.L.R.5th 1.

Validity, construction, and application of state statutes prohibiting sale or possession of
controlled substances within specified distance of schools, 27 A.L.R.5th 593.
Criminality of act of directing to, or recommending, source from which illicit drugs may
be purchased, 34 A.L.R.5th 125.

Sufficiency of evidence that possessor of heroin had intent to distribute it, so as to
violate 21 USCS § 841(a)(1), 78 A.L.R. Fed. 413.

Sufficiency of evidence that possessor of cocaine had intent to distribute it, so as to
violate 21 USCS § 841(a)(1), 80 A.L.R. Fed. 397.

Admissibility of expert evidence concerning meaning of narcotics code language in
federal prosecution for narcotics dealing - modern cases, 104 A.L.R. Fed. 230.

Illegal drugs or narcotics involved in alleged offense as subject to discovery by
defendant under Rule 16 of Federal Rules of Criminal Procedure, 109 A.L.R. Fed. 363.

Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of
substance or transaction in prosecution for possession or distribution of drugs, 109
A.L.R. Fed. 710.

Under what circumstances should total weight of mixture or substance in which
detectable amount of controlled substance is incorporated be used in assessing
sentence under United States sentencing guideline § 2D1.1 - post-Chapman cases, 113
A.L.R. Fed. 91.

28 C.J.S. Drugs and Narcotics § 159 et seq.