State v. Cotton, 30,014.

Citation150 N.M. 583,263 P.3d 925,2011 -NMCA- 096
Decision Date29 August 2011
Docket NumberNo. 30,014.,30,014.
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Jeremy COTTON, Defendant–Appellant.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.Jacqueline L. Cooper, Acting Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Chief Judge.

{1} Defendant was in the driver's seat of a van parked on a roadside near Hobbs, New Mexico. His girlfriend and her four young children were in the car with him. Deputy Kelly had been called to the location to investigate a report of a possible domestic incident occurring in the van. Suspecting that Defendant was intoxicated, Deputy Brown questioned Defendant who admitted that he had consumed alcohol recently. Defendant then failed field sobriety tests (FSTs), was arrested for DWI, refused to submit to chemical testing, and was unwilling to cooperate when he was placed in the police car after arrest. He was ultimately charged with and convicted of aggravated DWI in violation of NMSA 1978, Section 66–8–102 (2008) (amended 2010); negligent child abuse not resulting in great bodily harm or death in violation of NMSA 1978, Section 30–6–1 (2005) (amended 2009); and resisting, evading, or obstructing an officer in violation of NMSA 1978, Section 30–22–1 (1981). On appeal, Defendant's primary challenge is to the sufficiency of the evidence underlying the convictions. He argues that there was no evidence presented at trial to prove that he actually drove while impaired or that he endangered the children's lives. We agree, and we reverse these convictions. His sufficiency arguments as to resisting arrest are unpersuasive; the evidence shows Defendant vigorously resisted the deputies. We reverse in part, affirm in part, and remand for resentencing on the sole count of resisting arrest.

DISCUSSION

{2} As a preliminary matter, Defendant, for the first time on appeal, contends that the district court erred in failing to issue UJI 14–4511 NMRA that defines the term “operating” in the DWI context. Because we conclude that the evidence is insufficient to support the DWI conviction, we need not reach Defendant's argument that UJI 14–4511 was wrongly withheld. We first set out our standard of review, then turn our attention to the DWI conviction, and finally examine the other convictions.

Standard of Review

{3} “The sufficiency of the evidence is assessed against the jury instructions because they become the law of the case.” State v. Quinones, 2011–NMCA–018, ¶ 38, 149 N.M. 294, 248 P.3d 336. The sufficiency review itself involves a two-step process. State v. Huber, 2006–NMCA–087, ¶ 11, 140 N.M. 147, 140 P.3d 1096. Initially, the evidence is viewed in the light most favorable to the verdict. Id. The appellate court must make a legal determination of “whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). [W]e will not reweigh the evidence nor substitute our judgment for that of the fact finder provided that there is sufficient evidence to support the verdict.” State v. Fuentes, 2010–NMCA–027, ¶ 13, 147 N.M. 761, 228 P.3d 1181 (internal quotation marks and citation omitted).

Aggravated DWI Conviction

{4} We begin with a summary of the evidence presented at Defendant's trial relative to the DWI count. In October 2008, the Lea County Sheriff's Department received a report of a possible domestic incident occurring in a van parked on a roadside in Hobbs, New Mexico. Roughly five minutes after the report was received, Deputy Brown arrived at the location where the van was parked. Deputy Sheriff Drew Buescher also responded and arrived shortly after Deputy Brown.

{5} Defendant was seated in the driver's seat of the van; Defendant's girlfriend was seated in the front passenger seat; and the four children, who were between the ages of two and nine, were seated in the rear. The van was not running, and the keys were not in the ignition. Deputy Brown detected the odor of alcohol emanating from the van and suspected that both Defendant and his girlfriend were intoxicated. Defendant's girlfriend's speech was slurred, and she was bleeding from her lip.

{6} Deputy Brown asked Defendant whether he had consumed any alcohol and Defendant responded that he had consumed twenty-four ounces of beer about one hour earlier. The deputy ordered Defendant out of the van and asked him to perform the standard FSTs. Defendant initially objected, stating that he was blind in one of his eyes, but Defendant eventually acquiesced. He failed the tests and was arrested for DWI and went to trial on these and other charges.

{7} The jury was instructed that the essential elements of aggravated DWI include the following:

1. [D]efendant operated a motor vehicle;

2. At the time [D]efendant was under the influence of intoxicating liquor; that is, as a result of drinking liquor [D]efendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public;

3. [D]efendant refused to submit to chemical testing;

4. This happened in New Mexico, on or about the 7th day of October, 2008.

Defendant asserts that the State failed to submit sufficient evidence to prove that he operated a motor vehicle while impaired to the slightest degree and, alternatively, failed to submit sufficient evidence of impairment. We begin with the first of these two arguments.

{8} Relying on State v. Sims, 2010–NMSC–027, 148 N.M. 330, 236 P.3d 642, and State v. Mailman, 2010–NMSC–036, 148 N.M. 702, 242 P.3d 269, Defendant claims that the State failed to prove that he “intended to drive or that he had recently driven.” Defendant's argument must be divided into two parts: did he intend to drive in the future or did he recently drive. As to the first scenario, the State did not try to prove that Defendant intended to drive—that he had actual physical control of the vehicle—as a basis for the conviction. The State confirms and concedes this point on appeal. The State's sole theory at trial was that there was ample circumstantial evidence that Defendant drove the van before he encountered Deputies Brown and Buescher and that Defendant was impaired to the slightest degree at that time. Only the Mailman case applies here. We explain.

{9} In Sims, our Supreme Court comprehensively reviewed the origins and applicability of the actual physical control standard and set new parameters for its applicability. Sims involved a driver who had lapsed into unconsciousness while sitting behind the wheel of a parked vehicle. 2010–NMSC–027, ¶ 1, 148 N.M. 330, 236 P.3d 642. When the police discovered the defendant in his vehicle, it was not running; and the keys were not in the ignition. Id. The metropolitan court determined that the defendant had been in actual physical control of the vehicle, so the defendant pled to one count of DWI but reserved the right to appeal the metropolitan court's determination. Id. ¶ 2.

{10} In reversing the metropolitan court, our Supreme Court turned a new page in its DWI jurisprudence and concluded that the State must prove two elements to secure a DWI conviction under the actual physical control standard: (1) the defendant was actually, not just potentially, exercising control over the vehicle, and (2) the defendant had the general intent to drive so as to pose a real danger to himself, herself, or the public.” Id. ¶ 4. The Court expressly recognized the consequence of these new requirements: “interpreting actual physical control to require proof of intent makes it analytically similar to an attempt crime.” Id. ¶ 27. Applying this reformulated standard to the facts in Sims, the Court determined that the State failed to meet its burden. Id. ¶ 4. Sims directs that the actual physical control standard is applicable only when the prosecution is premised on prospective or anticipated impaired driving.

{11} In Mailman, as in Sims, the defendant was seated in the driver's seat of his parked vehicle when he was approached by an officer. Mailman, 2010–NMSC–036, ¶ 2, 148 N.M. 702, 242 P.3d 269. The vehicle was not running, and the keys were not in the ignition. Id. ¶ 5. The officer suspected that the defendant was intoxicated—there was an open beer can on the center console, and he demonstrated physical signs of impairment. Id. ¶ 3. The defendant confirmed the officer's suspicions by admitting that he had consumed a six pack of beer and had thrown the empty cans out of the window of his vehicle as he drove from the location he had been earlier. Id. ¶ 4. The defendant refused to perform field sobriety tests or take a breath test. Id. ¶ 5. As to the latter, he admitted that he was too drunk to pass. Id.

{12} At trial, the state argued that the defendant was guilty of DWI based on either of the following two theories: (1) the defendant was in actual physical control of the vehicle while impaired; or (2) the defendant actually drove the vehicle while impaired. Id. ¶ 6. The jury returned a general verdict of guilty. Id.

{13} Citing the new requirements established in Sims, the Mailman Court observed that there was insufficient evidence presented “to demonstrate that [the d]efendant had taken an overt step toward driving with a general intent to drive so as to endanger himself or the public” and held that the defendant could not have been convicted under a theory of actual physical control. Id. ¶ 21. The Court clarified, however, that this conclusion had no bearing on...

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