{
  "id": 2866537,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Willie YANEZ, Defendant-Appellant",
  "name_abbreviation": "State v. Yanez",
  "decision_date": "1976-08-03",
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  "last_updated": "2023-07-14T20:56:52.908635+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HERNANDEZ and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Willie YANEZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nConvicted of possession of morphine contrary to \u00a7 54-11-23(A), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975) defendant appeals. The appeal was assigned to the legal calendar on the basis of the facts set forth in the docketing statement. Only two of the issues stated in the docketing statement are argued. See Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). The two issues presented for decision involve: (1) judicial notice, and (2) possession versus use.\nThe following facts are those set forth in the docketing statement. Agent Moore observed what he suspected was a \u201cscore\u201d between defendant and another. After \u201cscoring\u201d, defendant went to a drug store and purchased two hypodermic needles. Agent Dunlap interviewed the druggist and notified Agent Moore that the defendant purchased the two hypodermic needles. Agent Dunlap followed the defendant to a service station where the defendant and another entered the restroom. Agent Moore joined Agent Dunlap and an on-the-spot inspection of the restroom disclosed one hypodermic needle that may have been used. Furthermore, Agent Moore saw what he suspected to be fresh needle marks on the defendant\u2019s arm.\nThe defendant was arrested on a charge of possession of heroin. He was transported to Memorial General Hospital where catheterization was used to obtain a urine sample. That sample was positive for morphine.\nJudicial Notice\nSection 54-11-23(A), supra, is concerned with the possession of a controlled substance. Controlled substances are set forth in five schedules in the statutes. See \u00a7\u00a7 54-11-5 through 54-11-10, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp.1975). Schedule I lists various opium derivatives including but not limited to desomorphine, morphine-N-oxide, nicomorphine, normorphine. Section 54-ll-6(B), supra.\nThe word \u201cmorphine\u201d does not appear in the schedules. There was no proof that \u201cmorphine\u201d was included within any of the items listed in the various schedules.\nSchedule II includes within the list of controlled substances \u201copium and opiate, and any salt, compound, derivative or preparation of opium or opiate\u201d. Section 54 \u2014 11-7(A) (1), supra.\nThe trial court took judicial notice that morphine is an opium derivative. Defendant contends this was error.\nStedinan\u2019s Medical Dictionary (Second Lawyers\u2019 Ed. 1966) page 1015, defines morphine as \u201cthe chief narcotic principle (alkaloids) of opium\u201d. A similar definition is given in Webster\u2019s Third New International Dictionary (1966).\nEvidence Rule 201(b)(2) authorizes judicial notice of a fact not subject to reasonable dispute in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. That morphine is an opium derivative is a fact not subject to reasonable dispute. Compare, Hartford Accident and Indemnity Co. v. Beevers, 84 N.M. 159, 500 P.2d 444 (Ct.App.1972). The trial court properly took judicial notice of that fact. State v. Brennan, 89 Mont. 479, 300 P. 273 (1931); Jefferson v. State, 34 Okl.Cr. 56, 244 P. 460 (1926).\nPossession Versus Use\nDefendant contends that he was convicted of \u201cuse\u201d of morphine rather than its possession and that \u201cuse\u201d is not prohibited by \u00a7 54 \u2014 11-23(A), supra. He points out that a statute prohibiting \u201cuse\u201d of a narcotic drug, \u00a7 54-7-50, N.M.S.A.1953 (Repl.Vol. 8, pt. 2) has been repealed.\nThis argument overlooks the fact that defendant was convicted of possession. The presence of morphine in defendant\u2019s urine was an item of circumstantial evidence tending to show that defendant had possessed morphine. The presence of morphine in the urine, together with the facts stated earlier in the opinion, was substantial evidence that defendant possessed morphine. Franklin v. State, 8 Md.App. 134, 258 A.2d 767 (1969); Peachie v. State, 203 Md. 239, 100 A.2d 1 (Ct.App.1953).\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Jan A. Hartke, Acting Chief Public Defender, Bruce L. Herr, Appellate Defender, Reginald J. Storment, Asst. Appellate Defender, Santa Fe, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., Raymond Hamilton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "553 P.2d 252\nSTATE of New Mexico, Plaintiff-Appellee, v. Willie YANEZ, Defendant-Appellant.\nNo. 2567.\nCourt of Appeals of New Mexico.\nAug. 3, 1976.\nJan A. Hartke, Acting Chief Public Defender, Bruce L. Herr, Appellate Defender, Reginald J. Storment, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Raymond Hamilton, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0397-01",
  "first_page_order": 433,
  "last_page_order": 434
}