State v. Nevarez

• Decision Date: 02 June 2010
• Docket Number: No. 28,599.,28,599.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Saul NEVAREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

242 P.3d 387

148 N.M. 820

2010 -NMCA- 049

STATE of New Mexico, Plaintiff-Appellee,

v.Saul NEVAREZ, Defendant-Appellant.

No. 28,599.

Court of Appeals of New Mexico.

April 1, 2010.

Certiorari Denied, June 2, 2010, No. 32,371.

Certiorari Granted, June 2, 2010, No. 32,374.

Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Public Defender, Albuquerque, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} After a jury trial in the Bernalillo County Metropolitan Court, Saul Nevarez was convicted of possession of an open container in a motor vehicle, aggravated DWI (third offense), concealing identity, careless driving, assault, injuring or tampering with a vehicle, and driving while license suspended. Defendant appealed all convictions to the district court—except for the driving while license suspended charge—arguing that there was a lack of substantial evidence. The district court affirmed. On appeal to this Court, Defendant again argues that the judgment below was not supported by substantial evidence.

{2} Defendant also raises a new issue on appeal. Emphasizing that the open container offense described in NMSA 1978, § 66-8-138(B) (2001) provides that "[n]o person shall knowingly have in his possession on his person " (emphasis added), Defendant asserts the trial court did not submit a correct instruction to the jury and then failed to provide a curative instruction to the jury when it expressed confusion as to the possession element of the open container charge. Defendant argues that the improper instruction and the failure to provide a curative instruction created juror confusion as to the possession element of the offense and together constitute fundamental error.

{3} We agree with the essence of Defendant's position with respect to the open container issue. Accordingly, we reverse Defendant's conviction for possession of an open container and grant a new trial on this issue. Defendant's convictions for aggravated DWI, concealing identity, careless driving, assault, and injuring or tampering with a vehicle are supported by substantial evidence and we affirm as to these remaining convictions.

BACKGROUND

{4} The testimonial accounts of the facts relating to Defendant's arrest diverge significantly. At trial, APD Officer Ryan Nelson testified that he witnessed Defendant drive his pickup truck at a high rate of speed and squeal into a parking area. He stated that Defendant drove his vehicle so near to him and at such a high rate of speed that he had to move in order to avoid being struck. Upon approaching Defendant's vehicle, Officer Nelson observed that Defendant's passengers all had open containers of beer they were drinking. He testified that Defendant showed signs of intoxication, that there were open bottles of beer in the truck, and that Defendant admitted that he drank. Officer Nelson allowed the passengers to leave the scene, and then proceeded to administer field sobriety tests to Defendant, including the walk and turn and one-leg stand tests. According to Officer Nelson's testimony, Defendant performed each of these tests improperly by stepping off the imaginary line for the walk and turn test, and failing to count properly or adequately hold his balance for either test. Defendant was placed under arrest for driving while intoxicated.

{5} Officer Nelson testified he asked Defendant for his insurance and driver's license but that Defendant denied having either. Officer Nelson also stated that when asked, Defendant said his name was Armando Lopez and gave a birth year of 1974, but did not give a month or day. While inventorying Defendant's property, Officer Nelson discovered credit cards in Defendant's wallet with Defendant's true name, Saul Nevarez. Officer Nelson requested that his assisting officer, Officer Anthony Simballa, search the computer system for information on that name. At that point Defendant became agitated,

[242 P.3d 391, 148 N.M. 824]

laid down in the backseat of the patrol car, and began kicking the window, eventually kicking out the small vent window and breaking the window control box. Officers Nelson and Simballa attempted to remove Defendant from the patrol car but Defendant continued to kick at them, and they were able to successfully remove him only after a one-second burst of mace to the eyes and nose. Both officers testified that Defendant kicked at them and that they were grazed and nearly kicked several times.

{6} At the police substation, Officer Nelson observed Defendant for approximately forty minutes and informed him that he was required to submit to a blood test, breath test, or both to determine his alcohol level. Officer Nelson read this requirement from the Implied Consent Advisory notice posted at the substation. Defendant's primary language is Spanish, and although Officer Nelson read it in English, the notice was posted in both English and Spanish and Officer Nelson testified that Defendant seemed to understand. Defendant was advised that in addition to the required test he could have an independent test performed by a qualified person of his choice at no charge to him, and that failure to submit to the test could result in revocation of his driving privileges. Defendant was twice asked to submit to testing and twice responded "fuck you pussy, viva la raza[!]" The testimony of Officer Simballa generally corroborated that of Officer Nelson.

{7} Defendant's version of these events is dramatically different. At trial, Defendant testified that he and some friends were taking a break from helping a friend move when they were approached by Officer Nelson. Defendant testified that he and his friends were gathered at the back of his sister's pickup truck, and that his friends were drinking beer but that he was not. Defendant testified that he explained to Officer Nelson that he had not had a drink in eight years. He also testified that he never gave an incorrect name to Officer Nelson, that Armando Lopez was in fact one of Defendant's passengers, and that Officer Nelson must have confused the two men's names. Defendant also explained that his limited English proficiency may have contributed to Officer Nelson's confusion.

{8} Defendant alleged that at some point, apparently for no reason, Officer Nelson kicked him, threw him in the police car, took him to an unknown location where he and another officer continued to beat him, called him a "fucking wetback" and threatened to "take him back to the mesa to kill him." He testified that he never lied about his name and that despite having been beaten in and out of consciousness, he remembered at some point "blowing into a machine" and giving two breath samples which showed that he had no alcohol in his system.

DISCUSSION

{9} As a preliminary matter, we note the wide divergence in the testimony describing the events surrounding Defendant's arrest. Notwithstanding, this Court will not re-weigh the credibility of the witnesses at trial or substitute its determination of the facts for that of the jury as long as there is sufficient evidence to support the verdict. State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. Our review is limited to those questions properly before us, including: (1) whether the possession element of Section 66-8-138(B) was properly described in the jury instructions; (2) whether, because of jury misunderstanding as to the requisite possession standard, Defendant's conviction constitutes fundamental error; and (3) whether substantial evidence supports Defendant's convictions.

1. The Meaning of "Possession" Under Section 66-8-138(B)

{10} Statutory interpretation presents a question of law, which we review de novo. State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. "Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature." State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. "We do this by giving effect to the plain meaning of the words of [the] statute, unless this leads to an absurd or unreasonable result." State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801. "[A] statute defining criminal conduct must

[148 N.M. 825, 242 P.3d 392]

be strictly construed." Santillanes v. State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993). "Doubts about the construction of criminal statutes are resolved in favor of ... lenity." State v. Keith, 102 N.M. 462, 465, 697 P.2d 145, 148 (Ct.App.1985).

{11} Section 66-8-138(B) states:

No person shall knowingly have in his possession on his person, while in a motor vehicle upon any public highway within this state, any bottle, can or other receptacle containing any alcoholic beverage that has been opened or had its seal broken or the contents of which have been partially removed.

(Emphasis added.) The open container jury instruction given at trial provided:

For you to find [D]efendant guilty of Possession of an Open Container of Alcohol, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [D]efendant drove a motor vehicle on a street;

2. [D]efendant had in his immediate possession an open bottle, can, glass or other container of alcoholic beverage with alcohol remaining in it; and

3. This happened in Bernalillo County, State of New Mexico on or about the 26th day of May, 2006.

(Emphasis added.) After retiring to deliberate, the jury sent the following question to the court: "Does immediate possession mean (1) in vehicle, or (2) or [sic] in driver's possession?" Without objection from the parties, the court's response to the jury was only that the jury should apply the facts to the instruction it had already been given. Defendant argues that the jury was confused, as evidenced by its inquiry, as to whether a type of constructive possession was sufficient to find him guilty under the instruction given. He asserts...