{
  "id": 1571091,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. James BENDER, Defendant-Appellant",
  "name_abbreviation": "State v. Bender",
  "decision_date": "1978-05-31",
  "docket_number": "No. 11638",
  "first_page": "670",
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    {
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      "cite": "86 N.M. 556",
      "category": "reporters:state",
      "reporter": "N.M.",
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  "last_updated": "2023-07-14T15:07:42.064818+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "McMANUS, C. J., and PAYNE, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. James BENDER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nFEDERICI, Justice.\nDefendant was charged by criminal information with four counts of trafficking in a controlled substance, contrary to \u00a7 54- -11 20(B), N.M.S.A.1953 (Supp.1975). At the conclusion of a jury trial the jury returned guilty verdicts for each count. The judgment and sentence committed the defendant to the penitentiary for ten to fifty years under Count I, and for life sentences under Counts II, III and IV, to be served concurrently. Defendant appeals.\nDefendant asserts that the trial judge committed reversible error by failing to properly instruct the jury on the essential elements of the crime of trafficking in a controlled substance by distribution, as that crime is defined in \u00a7 54-11-20(A)(2), N.M.S. A.1953 (Supp.1975). Defendant acknowledges that the issue of the propriety of the trial court\u2019s instruction was not preserved below. However, defendant asserts that the question may properly be raised for the first time on appeal as \u201cjurisdictional error.\u201d N.M.R.Crim.P. 41(a) [\u00a7 41-23-41(a), N.M.S.A.1953 (Supp.1975)] requires the trial court to instruct the jury on the law essential for a conviction of the crime submitted to the jury even if no requested instruction is tendered. In State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), this Court held that the failure of the trial court to properly instruct on all of the essential elements of the crime charged was jurisdictional and could be raised for the first time on appeal.\nSection 54-11-20(A) states the ways a person may traffic in a controlled substance. In this case the trafficking consisted of the sale of heroin. This crime is defined in \u00a7 54-11-20(A)(2), as follows:\nA. As used in the Controlled Substances Act [54-11-1 to 54-11-39], \u201ctraffic\u201d means the:\n(2) distribution, sale, barter or giving away any controlled substance enumerated in Schedules I or II which is a narcotic drug.\nSection 54-11-20(B) makes it unlawful for anyone to \u201cintentionally traffic.\u201d\nIn instructing the jury on the elements of the crime, the trial court used N.M.U.J.I. Crim. 36.10, as follows:\nFor you to find the defendant guilty of \u201ctrafficking a controlled substance by distribution\u201d as charged in Count One, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. The defendant transferred heroin to another;\n2. The defendant knew it was heroin or believed it to be heroin, or believed it to be some drug or other substance the possession of which is regulated or prohibited by law;\n3. This happened in New Mexico on or about the 28th day of October, 1976.\nAn instruction on general criminal intent, N.M.U.J.I. Crim. 1.50 [Vol. 6, N.M.S.A.1953 (Supp.1975), at 294], was also given.\nDefendant contends that trafficking in a controlled substance by distribution is a specific intent crime, that the jury should have been instructed on the additional element of specific intent, and that the trial court committed jurisdictional and reversible error in failing to so instruct the jury. We do not agree with the defendant\u2019s contentions.\nDefendant relies upon State v. Gonzales, 86 N.M. 556, 525 P.2d 916 (Ct.App.1974). In Gonzales, the defendant was convicted of two violations of \u00a7 54-11-20 as it read before its most recent amendments [Controlled Substances Act, ch. 84, \u00a7 20, 1972 N.M. Laws 465], The amendments to the earlier version of the statute changed only its sentencing provisions, and for our present purposes the amended and unamended versions of the statutes may be said to be identical. In State v. Gonzales, supra, the trafficking of which the defendant was convicted consisted of the sale of heroin, \u00a7 54-11-20(A)(2), and possession of heroin with intent to distribute it, \u00a7 54-11-20(A)(3). Without distinguishing between these two subsections, the Court of Appeals held that \u00a7 54-11-20 requires a specific intent. We think the holding of the Court of Appeals was erroneous insofar as it interprets the crime of trafficking in a controlled substance by distribution, \u00a7 54\u201411\u201420(A)(2), to be a crime of \u201cspecific intent,\u201d and to that extent only Gonzales is hereby overruled.\nThe following passage from People v. Hood, 1 Cal.3d 444, 456, 457, 82 Cal.Rptr. 618, 626, 462 P.2d 370, 378 (1969), places this question in proper perspective:\nWhen the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a further consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be general criminal intent. When the definition refers to defendant\u2019s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.\nSince that portion of \u00a7 54-11-20 which prohibits trafficking by \u201cdistribution, sale, barter or giving away any controlled substance . . which is a narcotic drug,\u201d \u00a7 54-11-20(A)(2), consists of only a description of a particular act, without reference to defendant\u2019s intent to do some further act or achieve some additional consequence, the crime is properly one of general intent. Consequently, there was no error in the trial court\u2019s instructions to the jury in this case.\nIt should also be noted that N.M.U.J.I. Crim. 36.10, fully informs the jury that, in order to convict of the crime of trafficking a controlled substance by distribution, it must find that the defendant knew the substance transferred by him to be the drug he is charged with distributing, or believed it to be that drug, or believed it to be some drug or other substance the possession of which is regulated or prohibited by law. Thus, the element of \u201cknowledge\u201d is not lacking from the uniform instruction. See State v. Giddings, 67 N.M. 87, 352 P.2d 1003 (1960); State v. Gonzales, supra.\nHaving found no error in the trial court\u2019s instructions to the jury, and having found the other points raised by defendant on appeal to be without merit, the judgment and sentence are affirmed.\nIT IS SO ORDERED.\nMcMANUS, C. J., and PAYNE, J., concur.",
        "type": "majority",
        "author": "FEDERICI, Justice."
      }
    ],
    "attorneys": [
      "Reginald J. Storment, Appellate Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for appellant.",
      "Toney Anaya, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "579 P.2d 796\nSTATE of New Mexico, Plaintiff-Appellee, v. James BENDER, Defendant-Appellant.\nNo. 11638.\nSupreme Court of New Mexico.\nMay 31, 1978.\nReginald J. Storment, Appellate Defender, Douglas A. Barr, Asst. Appellate Defender, Santa Fe, for appellant.\nToney Anaya, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0670-01",
  "first_page_order": 706,
  "last_page_order": 708
}