State v. Dutchover
| Decision Date | 30 March 1973 |
| Docket Number | No. 1067,1067 |
| Citation | 85 N.M. 72,509 P.2d 264,1973 NMCA 52 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Benjamin A. DUTCHOVER, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of homicide by vehicle, defendant appeals. The issues concern: (1) the sufficiency of the evidence and (2) a refused instruction.
Section 64--22--1, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2) defines the crime as '. . . the killing of a human being in the unlawful operation of a motor vehicle.' The 'unlawful operation' relied on by the State was driving a vehicle while either under the influence of intoxicating liquor or under the influence of a narcotic drug, or both. Section 64--22--2, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2).
Sufficiency of the evidence.
Defendant challenged the sufficiency of the evidence by motions for a directed verdict at the close of the State's case and again at the close of all the evidence. Our review of the evidence is in the light most favorable to the State. State v. Gregg, 83 N.M. 397, 492 P.2d 1260 (Ct.App.1972); State v. McKay, 79 N.M. 797, 450 P.2d 435 (Ct.App.1969).
Defendant asserts the evidence is insufficient as to three items: (a) the evidence of driving while under the influence of intoxicating liquor, a narcotic drug, or both; (b) evidence as to proximate cause of death; and (c) evidence of criminal intent. We disagree.
( a) Defendant was driving the vehicle which crossed a double yellow line and struck another vehicle. The issue under item (a) concerns the evidence of being 'under the influence,' both as to the intoxicating liquor and as to a narcotic drug. 'Under the influence' means that to the slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959); State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938).
There is evidence that on May 4, 1972, at 7:49 p.m., the defendant, while driving fast without lights, veered into the lane of an oncoming car driven by Mr. Fierro, striking it almost head-on. Mr. Fierro testified that when the other car got close to him he saw that the driver had his hands up in the air.
An investigating officer found an opened can of beer on the floorboard under the steering wheel. The officer talked to defendant at the hospital about an hour after the accident. On the basis of the officer's training, experience with intoxicated persons, the smell of defendant's breath and defendant's speech, the officer was of the opinion that defendant's ability to drive was impaired. See State v. Fields, 74 N.M. 559, 395 P.2d 908 (1964); City of Portales v. Shiplett, 67 N.M. 308, 355 P.2d 126 (1960).
A blood alcohol test by the gas chromatography method showed .075 percent alcohol. A urine alcohol test showed .086 percent alcohol. The blood and urine samples were taken from defendant at about 9:00 p.m. on the night of the accident. See § 64--22--2.10, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2).
Defendant testified that he had imbibed 5 or 6 beers during the day, the last being one and one-half hours prior to the accident. Previous statements of the defendant indicate he had five beers in the afternoon, the last of which was about an hour before the accident. Defendant testified he was not aware he was on the wrong side of the road before the accident.
A test for drugs was also performed. Morphine content of the blood was .15 micrograms per milliliter; morphine content of the urine was .45 micrograms per milliliter. According to the toxicologist, the morphine came from either heroin, morphine, or codeine. Defendant admitted to taking a 'little bit' of heroin on the day of the accident. The toxicologist could not say whether this amount of morphine would affect the average person; that the effect would depend on whether a person was used to taking the drug. He also testified: Defendant testified: '. . . That was the first time I ever used drugs before.'
The evidence of a first time use of heroin, the amount of morphine disclosed by the tests, together with the circumstances of the accident disclosed in discussing whether defendant was under the influence of intoxicating liquor, permits the inference that defendant was driving while under the influence of a narcotic drug.
There is substantial evidence that defendant was driving the car while under the influence of either intoxicating liquor, or a narcotic drug, or both.
( b) The decedent, Gloria Gonzales, was a passenger in the front seat of defendant's car at the time of the accident. Defendant contends there is no evidence that defendant's driving while 'under the influence' was the proximate cause of Gloria's death. There are two answers to this contention. First, no 'proximate cause' issue was raised by defendant's motions. He cannot raise that issue for the first time on appeal. State v. Martinez, (Ct.App.) 84 N.M. 766, 50, P.2d 36, decided March 9, 1973. Second, there is evidence that defendant, while driving 'under the influence,' caused an accident; that Gloria suffered injuries in the accident; and that Gloria died from those injuries. This is substantial evidence of proximate cause. See State v. Sisneros, supra.
As a part of his proximate cause argument, defendant would apply the uncontradicted evidence rule. He claims the evidence is uncontradicted that Gloria had passed out and fallen against defendant and that the accident occurred when defendant '. . . pushed her over and turned around to straighten her up. . . .' The evidence on which this contention is based is not uncontradicted evidence within the meaning of the uncontradicted evidence rule announced in Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940).
The so-called uncontradicted evidence comes from two additional passengers in defendant's car and from defendant himself. There is evidence that the two passengers were so drunk they did not know what happened. We have previously referred to the circumstances of the accident and the tests concerning alcohol and morphine. The uncontradicted evidence rule is not applicable because legitimate inferences from the facts and circumstances case reasonable doubt on the truth of the version of the accident to which defendant and the two passengers testified. Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546 (1966).
( c) The jury was instructed that criminal intent was a necessary element of the crime of homicide by vehicle. Defendant claims the evidence of criminal intent is insufficient. One of the State's contentions is that no such intent is required. Both parties erroneously argue the concept of specific intent; defendant says there is no evidence that defendant intentionally drove on the wrong side of the street; the State says there can rarely be proof that a defendant had the specific intent of killing somebody with a motor vehicle. No specific intent is involved. The criminal intent involved is that of a mental state of conscious wrongdoing. State v. Jordan,83 N.M. 571, 494 P.2d 984 (Ct.App.1972). The trial court so instructed the jury.
Defendant asserts the only evidence of criminal intent is that defendant voluntarily was 'under the influence.' He contends this is no more than evidence of a statutory violation, and more than a statutory violation must be shown to support a conclusion of criminal intent. The answer is that it depends on the particular statutory violation.
Here, we have two statutory violations--that of driving under the influence of intoxicating liquor and of driving under the influence of a narcotic drug. See § 64--22--2, supra. We have the voluntary act of becoming under the influence. We have the voluntary act of driving. Voluntarily driving a vehicle while under the influence is an act malum in se and this action is substantial evidence of criminal intent. See Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685 (1927), which is quoted and approved in State v. Alls, 55 N.M. 168, 228 P.2d 952 (1951). Compare State v. Hayes, 77 N.M. 225, 421 P.2d 439 (1966); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Clarkson, 58 N.M. 56, 265 P.2d 670 (1954).
Refused instruction.
Defendant asserts the trial court erred in refusing his requested instruction directed to the statutory presumptions concerning intoxication. These presumptions are based on tests of blood to determine the percentage, by weight, of alcohol.
Defendant's requested instruction would have informed the jury that if the blood tested contains .05% or less by weight of alcohol the presumption was that the person whose blood was tested was not under the influence of intoxicating liquor. The requested instruction would also have informed the jury that this presumption does not limit the introduction of other competent evidence. To this point, the requested instruction is consistent with § 64--22--2.10, supra.
The next portion of the requested instruction is inconsistent with that statute. The next portion would have told the jury that unless the jury found the blood '. . . contained more than .05% by weight of alcohol, you shall presume that the defendant was not under the influence of intoxicating liquor. . . .' This quoted phrase would apply the presumption based on a .05% test result and would disregard the provision of § 64--22--2.10, supra, which states: 'The presumptions . . . do not limit the introduction of other competent evidence. . . .' Specifically, this portion of the requested instruction would...
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