{ "id": 257706, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant", "name_abbreviation": "State v. Rael", "decision_date": "1999-04-06", "docket_number": "No. 19,105", "first_page": "347", "last_page": "354", "citations": [ { "type": "official", "cite": "127 N.M. 347" }, { "type": "parallel", "cite": "981 P.2d 280" }, { "type": "parallel", "cite": "1999-NMCA-068" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "115 N.M. 123", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725491 ], "weight": 2, "pin_cites": [ { "page": "126" }, { "page": "1380" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0123-01" ] }, { "cite": "115 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725481 ], "weight": 2, "pin_cites": [ { "page": "30" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0027-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "pin_cites": [ { "page": "658-60" }, { "page": "4-6" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "129" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "960 F.2d 191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10520686 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/f2d/960/0191-01" ] }, { "cite": "979 F.2d 119", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10512277 ], "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/f2d/979/0119-01" ] }, { "cite": "4 F.3d 647", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11933937 ], "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/f3d/4/0647-01" ] }, { "cite": "86 F.3d 956", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 452865 ], "weight": 2, "pin_cites": [ { "page": "965" }, { "page": "965" } ], "opinion_index": 0, "case_paths": [ "/f3d/86/0956-01" ] }, { "cite": "669 F.2d 241", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1161410 ], "weight": 2, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/f2d/669/0241-01" ] }, { "cite": "789 F.Supp. 1130", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7412232 ], "weight": 4, "pin_cites": [ { "page": "1132" }, { "page": "1132", "parenthetical": "citation omitted" }, { "page": "1132", "parenthetical": "\"[I]n order to create a permissible inference of drug operations, evidence relating to unexplained wealth should consist of two components: the defendant's substantial wealth, and the legitimate sources of his income.\"" }, { "page": "1133" } ], "opinion_index": 0, "case_paths": [ "/f-supp/789/1130-01" ] }, { "cite": "60 F.3d 1257", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 12049977 ], "weight": 3, "pin_cites": [ { "page": "1263" }, { "page": "1263" }, { "page": "1263" } ], "opinion_index": 0, "case_paths": [ "/f3d/60/1257-01" ] }, { "cite": "110 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716984 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "141" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0138-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "770" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "52 F.3d 640", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7413701 ], "pin_cites": [ { "page": "646, 647" } ], "opinion_index": 0, "case_paths": [ "/f3d/52/0640-01" ] }, { "cite": "652 So.2d 877", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7459383 ], "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/so2d/652/0877-01" ] }, { "cite": "830 F.2d 842", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1763514 ], "weight": 2, "pin_cites": [ { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/f2d/830/0842-01" ] }, { "cite": "141 N.J. 142", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 306040 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nj/141/0142-01" ] }, { "cite": "119 N.M. 752", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561234 ], "weight": 2, "pin_cites": [ { "page": "754" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0752-01" ] }, { "cite": "81 Cornell L.Rev. 224", "category": "journals:journal", "reporter": "Cornell L. Rev.", "year": 1995, "pin_cites": [ { "page": "253-64" } ], "opinion_index": 0 }, { "cite": "52 A.L.R.Fed. 818", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1981, "opinion_index": 0 }, { "cite": "519 N.W.2d 191", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11977813 ], "opinion_index": 0, "case_paths": [ "/nw2d/519/0191-01" ] }, { "cite": "18 U.S.C. \u00a7\u00a7 1961-68", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "105 N.M. 63", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599052 ], "weight": 4, "pin_cites": [ { "page": "69" }, { "page": "479" }, { "page": "69" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0063-01" ] }, { "cite": "452 U.S. 576", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313733 ], "weight": 6, "year": 1981, "pin_cites": [ { "page": "583" }, { "page": "583", "parenthetical": "defining an association-in-fact enterprise as \"a group of persons associated together for a common purpose of engaging in a course of conduct\"" }, { "parenthetical": "defining an association-in-fact enterprise as \"a group of persons associated together for a common purpose of engaging in a course of conduct\"" }, { "parenthetical": "defining an association-in-fact enterprise as \"a group of persons associated together for a common purpose of engaging in a course of conduct\"" } ], "opinion_index": 0, "case_paths": [ "/us/452/0576-01" ] }, { "cite": "108 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592779 ], "weight": 3, "pin_cites": [ { "page": "137" }, { "page": "376" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0134-01" ] }, { "cite": "108 N.M. 143", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592788 ], "weight": 6, "pin_cites": [ { "page": "150" }, { "page": "389" }, { "page": "150" }, { "page": "150" }, { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0143-01" ] }, { "cite": "117 N.M. 315", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552551 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "317" }, { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0315-01" ] }, { "cite": "121 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566678 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "114" }, { "page": "1382" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "1997-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142213 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0690-01" ] }, { "cite": "115 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725510 ], "weight": 2, "pin_cites": [ { "page": "455" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0445-01" ] } ], "analysis": { "cardinality": 1194, "char_count": 25487, "ocr_confidence": 0.672, "pagerank": { "raw": 1.375452192845832e-07, "percentile": 0.6393778170078641 }, "sha256": "d3100e063c153a3751b26a5bdf313ab6f765958f568c9901e11bc38b44ba1ff5", "simhash": "1:8eea7ccb76271360", "word_count": 4061 }, "last_updated": "2023-07-14T14:57:01.529900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PICKARD, C.J., and DONNELLY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Defendant appeals his conviction of five counts of trafficking in a controlled substance and one count of racketeering. He was sentenced to nine years on each count, but because he was found to be a habitual offender with two prior felony convictions, each sentence was enhanced by four years for a total of thirteen years per count, Four of the counts were to be served consecutively, with the remaining two to be served concurrently, for a total period of incarceration of fifty-two years.\n{2} Defendant raises the following issues on appeal: (1) the State failed to prove all of the elements of racketeering; (2) the admission of evidence of Defendant\u2019s assets and lifestyle was error; (3) the State endeavored to manipulate Defendant\u2019s sentence by engaging in a series of drug transactions with Defendant; and (4) there was insufficient evidence to support the five separate charges of trafficking. We reverse Defendant\u2019s conviction for racketeering but affirm on all remaining counts. We remand for resentencing.\nFACTS\n{3} Following an undercover investigation in late 1996, Defendant was arrested and charged with four counts of trafficking in cocaine, one count of trafficking in heroin, and one count of racketeering. The investigation involved a confidential informant (Clint Grant) introducing an undercover officer (Agent Cortez) to Defendant, who then sold narcotics to the undercover officer on four separate occasions. The sales were of progressively larger quantities of drugs, or involved arrangements for the sale of larger quantities of drugs: On August 22 Agent Cortez purchased one-sixteenth of an ounce of cocaine; on August 27 he purchased one-eighth of an ounce of cocaine; on August 29 he traded an automobile engine for one-half ounce of cocaine and one-half gram of heroin; and on October 10 he purchased one-eighth of an ounce of cocaine and asked Defendant if he could purchase an ounce of cocaine. Defendant said he could not sell an ounce of cocaine until he received another shipment of drugs, which he expected later that same week. After the initial introduction (the second trip to the Rael compound by both Grant and Cortez), Grant no longer accompanied Agent Cortez when Agent Cortez went to purchase drugs, although Grant did help to arrange the engine-for-narcotics exchange of August 29.\n{4} There was additional evidence that Defendant was selling drugs, as well,, both direct and indirect. According to Agent Cortez, Defendant said he paid heroin rather than cash to laborers who worked on his home. Grant testified that after he helped install a hot tub at Defendant\u2019s home Defendant paid him with cocaine, and that on numerous other occasions he purchased drugs from Defendant. Agent Cortez testified about the size of the house Defendant was building and about the furnishings in the house. Prosecutors corroborated this testimony by showing the jury a videotape investigators took of Defendant\u2019s home in March 1997. Finally, Agent Cortez also testified that state motor vehicle registration records indicated that ten vehicles were registered to Defendant, and that each time he purchased drugs from Defendant, Defendant was in possession of a large amount of cash. DISCUSSION\nA. The State Failed to Prove All Elements of Racketeering.\n{5} At the close of the State\u2019s case, Defendant moved for a directed verdict on the racketeering charge claiming that the State failed to prove the existence of an enterprise. The trial court denied the motion. \u201cThe question presented by a directed verdict motion is whether there was substantial evidence to support the charge.\u201d State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.App.1993) (citation omitted). State v. Armijo, 1997-NMCA-080, \u00b6 16, 123 N.M. 690, 944 P.2d 919 (citation omitted). However, whether Defendant\u2019s association with others constituted an enterprise under the Racketeering Act is a matter of statutory-interpretation, which is a question of law, not subject to the substantial evidence standard of review. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). We review questions of law de novo. See State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994).\nIn reviewing for the sufficiency of the evidence, the question is whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of the crime. The evidence is viewed in the light most favorable to the verdict and all conflicts are resolved in favor of the verdict.\n{6} \u201cThe purpose of the Racketeering Act [NMSA 1978, \u00a7\u00a7 30-42-1 to 30-42-6 (1980, as amended through 1998) ] is to eliminate the infiltration and illegal acquisition of legitimate economic enterprise by racketeering practices and the use of legal and illegal enterprises to further criminal activities.\u201d Section 30-42-2. It is unlawful for a person to invest proceeds derived from a pattern of racketeering activity in the acquisition, establishment, or operation of an enterprise. See \u00a7 30-42-4(A). It is also unlawful to engage in a pattern of racketeering activity in order to acquire an enterprise. See Section 30^42-4(B). \u201cIt is unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise\u2019s affairs by engaging in a pattern of racketeering activity.\u201d Section 30-42^1(0). And \u201c[i]t is unlawful for any person to conspire to violate any of the provisions of Subsections A through C of this section.\u201d Section 3(M2-4(D).\n{7} \u201cRacketeering\u201d is \u201cany act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year,\u201d involving any of several enumerated offenses, including trafficking in controlled substances. Section 30-42-3(A). A \u201c \u2018pattern of racketeering activity\u2019 means engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in Subsections A through D of Section 30-42-4 NMSA 1978.\u201d Section 30-42-3(D). An \u201c \u2018enterprise\u2019 means a sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or a group of individuals associated in fact although not a legal entity and includes illicit as well as licit entities.\u201d Section 30-42-3(C).\n{8} There are presently no Uniform Jury Instructions applicable to this State\u2019s Racketeering Act. The jury instruction given at trial was adapted from Sections 30-42-3 and -4.\n{9} At trial, the State argued that Defendant was engaged in an enterprise by selling drugs in order to finance the construction of his house, by trading drugs for work on his house, and by advising Agent Cortez that he could make money by cutting the cocaine he obtained from Defendant and selling it himself. In denying Defendant\u2019s motion for directed verdict, the trial court agreed that Defendant\u2019s activities constituted an enterprise, saying:\nClearly there is no legal entity---- [T]he question is whether this fits under any group of individuals associated in fact although not through a legal entity, and I think there is adequate evidence of a group of individuals involved. The group including [Defendant] and the others that appeared purchased controlled substances either for cash or, as was testified to, obtained controlled substances in exchange for work performed. It seems to me in some of the [racketeering] cases ... that [an] enterprise may exist where there is no association above and beyond the acts which form the pattern of racketeering activity. The purpose of the association may be as simple as earning money from repeated illegal acts. In my view that could fit this criteria at least as to [Defendant]. Or the purpose may be to obtain drugs for consumption in my view.\nOn appeal, the State argues that there was evidence that a defense witness was either acting as a courier or selling drugs for Defendant, which the State contends is further proof of an enterprise. We are not persuaded.\n{10} We have previously indicated that the State must prove the following elements in order to establish the existence of an enterprise:\n(1) a common purpose among the participants, (2) organization, and (3) continuity. Sporadic, temporary criminal alliances do not constitute an enterprise within the meaning of the act.\nWe believe the factors to be considered in determining the existence of an enterprise include the identity of the individuals involved, their knowledge of the relevant activities, the amount of planning required to carry out the predicate acts, the frequency of the acts, the time span between each act, and the existence of an identifiable structure within the association or entity....\nWe agree that proof of an organization is essential to establishing the elements of an enterprise.\nState v. Hughes, 108 N.M. 143, 150, 767 P.2d 382, 389 (Ct.App.1988) (citations omitted). An enterprise may exist \u201csolely for the purpose of engaging in the two or more crimes constituting the pattern of racketeering [activity].\u201d State v. Wynne, 108 N.M. 134, 137, 767 P.2d 373, 376 (Ct.App.1988). And the evidence used to prove the existence of an enterprise may overlap with evidence of a pattern of racketeering activity. See Hughes, 108 N.M. at 150, 767 P.2d at 389. But \u201c[t]he existence of an enterprise at all times remains a separate element which must be proved by the [State].\u201d Id. at 149, 767 P.2d at 388 (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)) (internal quotation marks omitted).\n{11} As this Court recognized in State v. Johnson, 105 N.M. 63, 69, 728 P.2d 473, 479 (Ct.App.1986), New Mexico\u2019s Racketeering Act is based on the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. \u00a7\u00a7 1961-68 (1994). Because of the similarity between the two acts, federal decisions interpreting RICO are instructive. See Johnson, 105 N.M. at 69, 728 P.2d at 479; see also Wynne, 108 N.M. at 137, 767 P.2d at 376. Thus, in addition to the nonexhaustive list of factors that are relevant in proving the three elements of an enterprise, which we first enumerated in Hughes, 108 N.M. at 150, 767 P.2d at 389, we also look to analogous federal and state case law. Nonetheless, we recognize that \u201c[t]he term \u2018enterprise\u2019 ... is one of those subjects that the more it is explained \u2014 at least in the abstract \u2014 the more elusive it becomes, and there is a danger of paraphrasing the term to death.\u201d State v. Huynh, 519 N.W.2d 191, 196 n. 7 (Minn.1994).\n{12} We hold that there was insufficient evidence of an enterprise to convict Defendant of racketeering. We believe that the transactions allegedly involving Defendant exchanging drugs for work on his house amounted to nothing more than \u201c[s]poradic, temporary criminal alliances,\u201d and in no way demonstrate the sort of organization we indicated was necessary in Hughes, 108 N.M. at 150, 767 P.2d at 389. We disagree with the trial court that an enterprise existed in the association between Defendant and buyers for personal use. See generally George K. Chamberlin, Annotation, What is an \u201cEnterprise,\u201d as Defined at 18 USCS \u00a7 1961 ft), for Purposes of the Racketeer Influenced and Corrupt Organizations (RICO) Statute (18 USCS \u00a7\u00a7 1961 et seq.) 52 A.L.R.Fed. 818 (1981); Jason D. Reichelt, Note, Stalking the Enterprise Criminal: State RICO & the Liberal Interpretation of the Enterprise Element, 81 Cornell L.Rev. 224, 253-64 (1995).\n{13} First, the State argues that even though not every individual was directly involved in trafficking drugs, each knew that the association was making a profit from the trafficking and each knowingly took part and performed his job on behalf of the enterprise and in furtherance of its common purpose to profit from the drug sales. We disagree. A buyer who seeks to obtain drugs for personal use normally does not share a common purpose with a seller who seeks to distribute drugs for profit, whether for cash or barter. Cf. State v. Pinson, 119 N.M. 752, 754, 895 P.2d 274, 276 (Ct.App.1995) (trafficking in controlled substance may be accomplished in a variety of ways, but purchasing is not included, and purchaser may not be prosecuted as an accessory).\n{14} Second, there was no evidence of organization between Defendant and buyers.\nThe organization of an enterprise need not feature an ascertainable structure or a structure with a particular configuration. The hallmark of an enterprise\u2019s organization consists rather in those kinds of interactions that become necessary ... to achieve a common purpose. The division of labor and the separation of functions undertaken by the participants serve as the distinguishing marks of the \u201centerprise\u201d because when a group does so divide and assemble its labors in order to accomplish its criminal purposes, it must necessarily engage in a high degree of planning, cooperation and coordination, and thus, in effect, constitute itself as an \u201corganization\u201d\nState v. Ball, 141 N.J. 142, 661 A.2d 251, 261 (1995).\n{15} Third, there was no evidence of continuity between Defendant and the buyers, irrespective of how often a particular buyer may have returned to Defendant to obtain drugs for personal use. Continuity means that the enterprise is an ongoing organization whose associates act as a continuing unit. See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (defining an association-in-fact enterprise as \u201ca group of persons associated together for a common purpose of engaging in a course of conduct\u201d). To prove continuity the State must show \u201can organizational pattern or system of authority that provides a mechanism for directing the group\u2019s affairs on a continuing, rather than an ad hoc basis.\u201d United States v. Kragness, 830 F.2d 842, 856 (8th Cir.1987). This requires that there be some continuity of structure and personnel within the association or entity. See id. Defendant\u2019s drug trafficking activities, as shown here, failed to satisfy the requirements of an enterprise under the Racketeering Act. Similarly, Defendant, in advising Agent Cortez that he could make money cutting the cocaine he bought from Defendant and selling it himself, does not establish an enterprise because there was no common purpose, organization or continuity, between Defendant and Agent Cortez. See Hughes, 108 N.M. at 150, 767 P.2d at 391.\n{16} The State\u2019s argument as to whether the defense witness was a courier for Defendant was limited almost entirely to inference. There was evidence only of a single transaction between Defendant and the witness, which is insufficient to support a finding that there was an organization and continuity between the two. Cf. Brown v. State, 652 So.2d 877, 879 (Fla.Dist.Ct.App.1995) (finding no enterprise where there was evidence only of isolated associations between the defendant and each of several witnesses). Without that, all that is left is evidence that Defendant sold drugs \u2014 perhaps a lot of drugs to a lot of people. Even so, we agree with courts that have held that an enterprise must be more than \u201can individual who conducts his own affairs through a pattern of racketeering.\u201d Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 646, 647 (7th Cir.1995).\nB. The Trial Court Did Not Err in Admitting Evidence of Defendant\u2019s Assets and Lifestyle.\n{17} Before trial, Defendant filed a motion seeking to prevent the State from introducing evidence of or mentioning Defendant\u2019s \u201cassets, home, home furnishings, tax status or employment\u201d on the ground that the evidence was irrelevant and, even if relevant, the danger of unfair prejudice substantially outweighed any probative value. The trial court denied the motion. We review a trial court\u2019s admission or exclusion of evidence for abuse of discretion. See State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994). \u201cWe cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d State v. Litteral, 110 N.M. 138, 141, 793 P.2d 268, 271 (1990).\n{18} Rule 11-401 NMRA 1999, defines \u201crelevant evidence\u201d as \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d Relevant evidence, however, \u201cmay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.\u201d Rule 11-A03 NMRA 1999.\n{19} We agree that in a drug trafficking prosecution evidence of unexplained wealth may be highly relevant. \u201cEvidence of unexplained wealth is probative and therefore admissible if it \u2018creates a reasonable inference of the defendant\u2019s involvement in the drug ... trafficking.\u2019 \u201d United States v. Penny, 60 F.3d 1257, 1263 (7th Cir.1995) (quoting United States v. Davis, 789 F.Supp. 1130, 1132 (D.Kan.1992) (evidentiary mem. & order)). \u201c[F]or such evidence to be probative, the defendant\u2019s wealth must be shown to be substantial. The government may, for example, show that the defendant possessed an extraordinarily large amount of cash or material possessions, or that the defendant engaged in an inordinately lavish lifestyle.\u201d Davis, 789 F.Supp. at 1132 (citation omitted). We also agree, however, that \u201c[t]he mere presence of wealth ... is only marginally relevant without a concomitant showing that the defendant\u2019s material possessions were not derived from legitimate sources.\u201d Id.; see also Penny, 60 F.3d at 1263.\n{20} In this case there was evidence of the lavishness of Defendant\u2019s house. Agent Cortez testified to having visited Defendant\u2019s three-story house, which contained, among other things, an expensive hot tub, expensive carpeting, two big-screen televisions, a wood stove Defendant is said to have bragged cost $4000, a pool table valued at between $8000 and $10,000, and numerous other furnishings. Agent Cortez also testified that Defendant boasted of the house having eleven bathrooms, which, according to Agent Cortez, Defendant said was \u201cnot bad for a guy who doesn\u2019t work.\u201d The jury also saw a videotape of the house and its contents that investigators prepared in March 1997. In addition to this evidence, however, was evidence that Defendant\u2019s sources of income were limited to his weaving and selling wood. In light of all of the evidence, the jury could reasonably infer that Defendant\u2019s wealth was derived from drug trafficking and not from legitimate sources. We hold that the trial court did not abuse its discretion by admitting evidence of Defendant\u2019s wealth. See Davis, 789 F.Supp. at 1132 (\u201c[I]n order to create a permissible inference of drug operations, evidence relating to unexplained wealth should consist of two components: the defendant\u2019s substantial wealth, and the legitimate sources of his income.\u201d).\n{21} Defendant also argues, relying on Penny and United States v. Chagra, 669 F.2d 241 (5th Cir.1982), that the admission of evidence of his wealth was too broad because there was no indication that it was acquired during the period he was alleged to have trafficked drugs. However, Defendant would have us construe too narrowly language indicating that evidence of wealth \u201cmust relate to ... the period in which the ... trafficking occurred,\u201d Penny, 60 F.3d at 1263, or that the wealth was acquired \u201cat or after the time of the commission of the alleged offense,\u201d Chagra, 669 F.2d at 256. We agree with the Davis court that evidence of unexplained wealth need only be \u201creasonably contemporaneous with the period in which the defendant\u2019s crimes allegedly occurred.\u201d 789 F.Supp. at 1133. Moreover, there was evidence that Defendant acquired some of the possessions in question \u201cat or after the time\u201d he was accused of trafficking drugs. Admission of the evidence was not an abuse of discretion.\nC. The State Did Not Engage in Sentence Manipulation.\n{22} Defendant contends that because Agent Cortez made five visits to Defendant\u2019s residence, purchasing drugs on four of the visits, the State engaged in sentence manipulation. The basis for Defendant\u2019s argument is that if Agent Cortez had only made two visits and thus two purchases, Defendant would only have been charged with two counts of trafficking. Instead, Defendant was charged and convicted of five counts of trafficking. Defendant contends that the sole purpose of the additional purchases was to increase Defendant\u2019s sentence. We are not persuaded.\n{23} \u201cLaw enforcement officials are entitled to buttress their cases with additional evidence, and the courts will not usurp the prosecutor\u2019s role in deciding when a particular case is strong enough to seek an indictment.\u201d United States v. Lacey, 86 F.3d 956, 965 (10th Cir.1996) (rejecting argument that FBI had sufficient evidence of the defendant\u2019s drug activities before final purchase but engaged in additional purchase solely to enhance defendant\u2019s potential sentence).\nObviously, any transaction in a sting after the first violation of law, however minor, will be subject to [claims of sentence manipulation]. Yet, ... it is legitimate for police to continue to deal with someone with whom they have already engaged in illicit transactions in order to establish that person\u2019s guilt beyond a reasonable doubt or to \u201cprobe the depth and extent of a criminal enterprise, to determine whether eoconspirators exist, and to trace the drug deeper into the distribution hierarchy.\u201d\nUnited States v. Shephard, 4 F.3d 647, 649 (8th Cir.1993) (quoting United States v. Calva, 979 F.2d 119, 123 (8th Cir.1992)), Therefore, \u201c[c]ourts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.\u201d United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992).\n{24} Here, each of the first three transactions included increasing quantities of cocaine, and the third meeting included a purchase of heroin as well. On Agent Cortez\u2019s fourth visit to Defendant\u2019s home he arranged to purchase an even larger amount of cocaine. It appears that the State was attempting to determine how large a quantity of cocaine Defendant was willing or able to sell and whether Defendant was willing or able to sell other drugs as well. And, in addition to the trafficking charges, the State was attempting to make a case for racketeering. As we have indicated, the State was ultimately unsuccessful on the racketeering charge because it did not have sufficient evidence of the existence of an enterprise, which suggests that, if anything, the State\u2019s investigation should have been more thorough. See Lacey, 86 F.3d at 965.\n{25} We acknowledge that under some circumstances continuing transactions between investigators and a potential defendant may constitute unfair manipulation of a defendant\u2019s sentence. We see no such manipulation in this case, however.\nD. There Was Substantial Evidence to Support the Five Separate Charges of Trafficking.\n{26} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.App.1985), Defendant argues that there was insufficient evidence to support five separate charges of trafficking in a controlled substance. We disagree.\n{27} Although Defendant denied making the sales, Agent Cortez testified that he purchased cocaine from Defendant on four separate occasions and heroin from Defendant on one occasion. Several alibi witnesses testified on Defendant\u2019s behalf, claiming that Defendant was either with them or elsewhere when the alleged sales took place. However, \u201c[i]t was for the [jury] as fact-finder to resolve any conflict in the testimony of the witnesses and to determine where the weight and credibility lay.\u201d State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct.App.1992). Here the jury apparently believed the State\u2019s witnesses. Regarding questions as to the sufficiency of evidence, \u201cour review involves a two-step process: deference to the resolution of factual conflicts and inferences derived therefrom, and a legal determination of whether the evidence viewed in this manner could support the conviction.\u201d State v. Orgain, 115 N.M. 123, 126, 847 P.2d 1377, 1380 (Ct.App.1993). If we accept as true Agent Cortez's testimony that he purchased cocaine from Defendant on four occasions and heroin on one occasion, the evidence supports a conviction of five counts of trafficking in a controlled substance.\nCONCLUSION\n{28} We affirm Defendant\u2019s conviction of five counts of trafficking in a controlled substance. However, the State failed to prove all the elements of racketeering because it failed to prove the existence of an enterprise. We therefore reverse Defendant\u2019s conviction for racketeering. We remand to trial court for resentencing.\n{29} IT IS SO ORDERED.\nPICKARD, C.J., and DONNELLY, J., concur.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Appellee.", "Phyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, for Appellant." ], "corrections": "", "head_matter": "1999-NMCA-068\n981 P.2d 280\nSTATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant.\nNo. 19,105.\nCourt of Appeals of New Mexico.\nApril 6, 1999.\nCertiorari Denied, No. 25,717, May 25, 1999.\nPatricia A. Madrid, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Appellee.\nPhyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, for Appellant." }, "file_name": "0347-01", "first_page_order": 383, "last_page_order": 390 }