State v. Mailman

• Citation: 2010 -NMSC- 036,148 N.M. 702,242 P.3d 269
• Decision Date: 24 June 2010
• Docket Number: No. 31,092.,31,092.
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. David MAILMAN, Defendant-Petitioner.
• Court: Supreme Court of New Mexico

242 P.3d 269 148 N.M. 702 2010 -NMSC- 036 STATE of New Mexico, Plaintiff-Respondent, v. David MAILMAN, Defendant-Petitioner. No. 31,092. Supreme Court of New Mexico. June 24, 2010.

Hugh W. Dangler, Chief Public Defender, Allison H. Jaramillo, Vicki W. Zelle, Corey J. Thompson, Assistant Appellate Defenders, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Margaret E. McLean, Ralph E. Trujillo, Assistant Attorney Generals, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} A jury convicted Defendant David Mailman by a general verdict of driving while intoxicated (DWI) based on alternative theories of actually driving while intoxicated or being in actual physical control of a vehicle while intoxicated. Defendant appeals, arguing that his conviction must be reversed because his vehicle was inoperable and, therefore, he was not in actual physical control of it, and because there was insufficient evidence to convict him of actually driving while intoxicated. We hold that Defendant's conviction, to the extent it may have been based on actual physical control, must be overturned in light of our recent decision in State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642. We also apply Sims and conclude

[148 N.M. 704, 242 P.3d 271]

that the operability of a vehicle is a factor to be considered by the jury in determining whether a defendant has the general intent to drive so as to endanger any person. The Court of Appeals having affirmed Defendant's conviction, we reverse and remand for a new trial.

BACKGROUND

{2} Defendant was arrested for DWI and charged pursuant to NMSA 1978, Section 66-8-102 (2005), with a fourth or subsequent offense. At trial, Officer Dwayne Favarino testified that on the night of December 9, 2006, he was patrolling Highway 64 in San Juan County when he stopped to check on the Hogback Mustang, a convenience store that had experienced a recent robbery. As Officer Favarino entered the parking lot, he observed a Jeep Cherokee parked off by itself in the dark with its door open. As he neared the vehicle to investigate, he saw the occupant close the door. Officer Favarino parked his cruiser, got out, and knocked on the driver's window. Defendant looked up at him from the driver's seat with a "blank stare" and then looked away, attempting to place a call from his cell phone. Officer Favarino knocked again, and receiving no response, opened the car door to speak with Defendant.

{3} Officer Favarino immediately observed an open can of beer on the center console and thought that Defendant appeared "confused and disoriented." The officer asked Defendant to step out of his vehicle, and he complied, though he had difficulty maintaining his balance and smelled strongly of alcohol.

{4} Officer Favarino asked if Defendant had been drinking. Defendant replied that he had consumed a six-pack of beer and that he had thrown the other cans out of the car window. After looking around the car for the empty cans, Officer Favarino asked Defendant where they were. Defendant replied that he had thrown the cans out of the window along the highway as he drove to the convenience store.

{5} Defendant then told Officer Favarino that his vehicle had broken down and asked if the officer would arrange for a tow truck. Officer Favarino asked where Defendant's keys were, and Defendant replied that he had dropped them under the seat. Officer Favarino briefly searched for the keys but could not find them. However, he recognized Defendant's vehicle as an older type that can sometimes be started without a key. Officer Favarino tried to start the vehicle without the key and discovered that he was able to turn the ignition, but the engine did not "turn over" when he did so, leading him to believe that the vehicle "had a dead battery or something." Prior to being placed under arrest, Defendant belligerently refused to perform field sobriety tests. He later refused to provide a breath sample, admitting that he was too drunk to pass the test.

{6} In its closing, the State argued to the jury that Defendant was guilty of DWI based on either of two theories: (1) actually driving a vehicle while impaired to the slightest degree, based partially on Defendant's own admissions, or (2) being in actual physical control of a vehicle while impaired to the slightest degree. After a short deliberation, the jury returned a general verdict of guilty without being asked to specify which theory formed the basis for its verdict. The Court of Appeals affirmed Defendant's conviction in a memorandum opinion. State v. Mailman, No. 27,966, slip op. (N.M.Ct.App. Apr. 9, 2008). We granted certiorari, 2008-NMCERT-005, 144 N.M. 332, 187 P.3d 678, and consolidated oral arguments in this case with Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, because both cases raised questions regarding the interpretation of the actual physical control aspect of our DWI law.

DISCUSSION

Defendant's Conviction Must Be Reversed in Light of Sims

{7} Section 66-8-102(A) provides, "[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." As we recently explained in Sims, we have interpreted the word "drive" to mean either "driving a motor vehicle," or being "in actual physical control whether or not the vehicle is moving." Sims, 2010-NMSC-027 at ¶¶ 9-10, 148 N.M. 330, 236 P.3d 642; accord UJI 14-4511 NMRA

[148 N.M. 705, 242 P.3d 272]

(also defining "drive" as "exercising control over or steering a vehicle being towed by a motor vehicle; or operating an off-highway motor vehicle; or in actual physical control of an off-highway motor vehicle whether or not the vehicle is moving" (brackets omitted)).

{8} In Sims, we clarified that actual physical control requires not only control over the vehicle, but also a general intent to drive so as to endanger any person. Sims, 2010-NMSC-027 at ¶¶ 20-21, 148 N.M. 330, 236 P.3d 642. We reasoned that the Legislature intended the DWI laws to apply only to intoxicated individuals who pose an actual, not hypothetical, danger to themselves or the public. Id. at ¶¶ 19-21. After Sims, "a fact finder cannot simply assume or speculate that the individual in question might sometime in the future commence driving his or her vehicle." Id. at ¶ 4. Instead, because actual physical control allows for a DWI conviction without motion of a vehicle—without actual driving—we held that proving a general intent to drive is necessary to demonstrate that an accused poses a real danger. Id. at ¶¶ 19-21. We thus overturned Sims's DWI conviction, because the State had failed to prove his intent to drive so as to endanger himself or the public. See id. at ¶ 4.

{9} We did not address in Sims how our holding was to apply to other cases. We take this opportunity to clarify that our holding in Sims applies prospectively to all cases pending in the trial court and on direct appeal as of the date that Sims was filed, June 8, 2010. See State v. Frawley, 2007-NMSC-057, ¶ 34, 143 N.M. 7, 172 P.3d 144 ("[A] new rule ... 'generally applies only to cases that are still on direct review.' " (quoting Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007))). Because this case was pending at that time, Sims applies here.

{10} In applying Sims to this case, we note the real possibility that the jury may have convicted Defendant based on the actual physical control of his vehicle without a general intent to drive so as to endanger himself or the public. The jury was instructed that it could convict Defendant of DWI if it found that he either was "driving the motor vehicle" or "in actual physical control whether or not the vehicle [was] moving." UJI 14-4511. No definition of actual physical control was provided. The jury returned a general verdict of guilty without indicating whether it was based on a finding of driving or actual physical control.

{11} In State v. Olguin, 120 N.M. 740, 741, 906 P.2d 731, 732 (1995), we held that "due process does not require a guilty verdict to be set aside if an alternative basis of conviction is only factually inadequate to support a conviction." However, "a conviction under a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate." Id.; see also State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92, 99 (Ct.App.1994) ( "Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime." (quoting Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)) (emphasis added)), aff'd in part and set aside in part, 120 N.M. 740, 906 P.2d 731 (1995). A conviction in the latter situation violates due process because a jury cannot be expected to reach the correct result when they " 'have been left the option of relying upon a legally inadequate theory.' " Olguin, 118 N.M. at 98, 879 P.2d at 99 (quoting Griffin, 502 U.S. at 59, 112 S.Ct. 466).

{12} Thus, a conviction under a general verdict must be reversed where it is based on more than one legal theory and at least one of those theories is legally, as opposed to factually, invalid. Here, because the jury might have convicted Defendant of DWI based on a theory of actual physical control without a general intent to drive so as to endanger himself or the public, his conviction must be reversed in light of our holding in Sims.

Actual Physical Control of an Inoperable Vehicle

{13} Defendant argues that because his vehicle was inoperable when Officer Favarino apprehended him in the parking lot, he was not in actual physical control. If we were to

[148 N.M. 706, 242 P.3d 273]

hold otherwise, Defendant contends that "mere access to a disabled and inoperable vehicle, without any analysis of the surrounding circumstances, would subject a person to a DWI prosecu...