State v. Owelicio, 30,461.

• Decision Date: 09 September 2011
• Docket Number: No. 30,461.,30,461.
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Lauren OWELICIO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 528

263 P.3d 305

2011 -NMCA- 091

STATE of New Mexico, Plaintiff–Appellee,

v.Lauren OWELICIO, Defendant–Appellant.

No. 30,461.

Court of Appeals of New Mexico.

July 5, 2011.Certiorari Granted, Sept. 9, 2011, No. 33,143.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.Jacqueline L. Cooper, Acting Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Public Defender, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Lauren Owelicio appeals from a district court judgment affirming her conviction in metropolitan court for aggravated driving under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section 66–8–102(D)(1) (2008) (amended 2010), after a bench trial. Defendant contends that her own uncorroborated extrajudicial statement admitting that she was driving was insufficient to support her conviction. We hold that evidence that someone was driving while intoxicated established the corpus delicti of the crime and that, regardless, there was evidence corroborating Defendant's admission that she was driving. Therefore, we hold that there was sufficient evidence to support Defendant's conviction. We affirm.

BACKGROUND

{2} The pertinent facts are undisputed. Officer Wayne Harvey testified that around midnight on August 23, 2007, he responded to a reported accident. He arrived at a parking lot and found a dark-colored vehicle with a man outside, later identified as Aaron Atcitty, who appeared to be changing a flat tire. The vehicle had two flat front tires, and Atcitty was changing the one on the driver's side. Harvey testified that when he arrived, he remembered seeing a woman, later identified as Defendant, seated in the passenger seat, although the tape from the video recorder, which was admitted into evidence, showed the woman getting into the car on the passenger side as Harvey arrived. No one was sitting in the driver's seat.

{3} Harvey testified that Atcitty emitted a strong odor of alcohol. He testified that Atcitty's speech was very slurred, and he could not initially understand what Atcitty was telling him. Atcitty denied driving the vehicle and claimed that an unnamed friend had been driving but ran away. Harvey testified that it was clear that Atcitty denied driving.

{4} Harvey then spoke with Defendant. He noticed that she had bloodshot, watery eyes, and that she emitted a strong odor of alcohol. Harvey asked her to step out of the vehicle, which she did, albeit slowly. She was swaying back and forth and was unsure of her balance.

{5} Harvey escorted Defendant to the patrol car and asked her who had been driving. She initially said nothing, then put her head down, let out a deep sigh, and said “I was driving the vehicle.” Defendant told Harvey she was coming from Graham Central Station, a nightclub, where she had consumed three drinks, and she had a blowout while driving.

{6} Harvey specifically asked Defendant if Atcitty was driving, and she said no. He accused Defendant of lying because she looked at Atcitty before responding, but Defendant again told him she was driving. Harvey testified that he gave Defendant several chances to consider what she was saying, and Defendant admitted to driving each time. He testified that he initially thought both Defendant and Atcitty were lying and Atcitty was driving until Defendant admitted to driving several times. Harvey believed Defendant had a “bout of good conscience” when she admitted to driving, and he testified that he gave her several chances to change her story to ensure that she was not trying to cover up for Atcitty.

{7} After determining that Defendant was driving, Harvey administered field sobriety tests, and Defendant performed poorly. Harvey concluded that she was under the influence of alcohol and arrested her for DWI. When Harvey escorted Defendant back to the vehicle, she went to the passenger side to retrieve her license. Harvey later administered a breath alcohol test at the police station, and the breath card admitted into evidence at trial showed Defendant had a breath score of .20/.19.

{8} The tape from the video recorder was admitted into evidence and shows that as Defendant and Harvey approached the vehicle, Atcitty again insisted that his friend had been driving. Harvey told Atcitty to stop lying because Defendant had already admitted she was driving. When Defendant again claimed she was driving, Atcitty responded “No you weren't, dumb-ass[.]”

{9} Atcitty's sister, Cynthia Qualo, testified that she, her husband, Atcitty, and Defendant were at Graham Central Station on the night in question. She testified that Defendant had “a lot” to drink while they were at Graham Central Station, while she herself had one drink. She also testified that she saw Atcitty in the driver's seat when Atcitty and Defendant drove away from Graham Central Station.

{10} Qualo testified that Atcitty and Defendant were driving behind the car containing Qualo and her husband, but the cars became separated, and by the time Qualo found Atcitty and Defendant, they were standing outside the car surrounded by police officers. Qualo testified that she did not see the accident that caused the blowout and did not know what happened after the cars became separated.

{11} At trial, Defendant testified that no one was with her and Atcitty in the vehicle, and she admitted she had previously told Harvey she was driving. However, she recanted her earlier statements, claiming she only said she was driving because she wanted to protect Atcitty and his job. She claimed Atcitty's job was more important than her job, and he might lose it if he was convicted of DWI. In response to Defendant's testimony, the metropolitan court judge told defense counsel that his client was a liar; she either lied to Harvey or was lying to the court and asked which testimony the court should believe.

{12} No one other than Atcitty and Defendant was present during Harvey's interactions with them. Harvey could not remember where the keys were located but admitted Defendant did not have them and that the keys eventually went with Atcitty. Harvey testified that he did not know the identity of the registered owner of the car. We note that Defendant has attached a copy of the car's registration to her brief in chief, but we decline to consider this evidence because it was not before the trial court. See State v. Cumpton, 2000–NMCA–033, ¶ 20, 129 N.M. 47, 1 P.3d 429 (“Counsel should not refer to matters not of record in their briefs.”).

{13} The metropolitan court convicted Defendant of DWI, and the district court affirmed her conviction. On appeal, Defendant challenges the sufficiency of the evidence to support her conviction. Specifically, she claims there was insufficient evidence to prove she was driving the vehicle because the only evidence supporting that finding is her own uncorroborated, extrajudicial admission. We affirm.

CORPUS DELICTI AND/OR TRUSTWORTHINESS RULE

{14} In order to convict Defendant of aggravated DWI, the State had to prove beyond a reasonable doubt that: (1) Defendant operated a motor vehicle; (2) within three hours of driving, she had an alcohol concentration of at least sixteen one-hundredths (.16) grams in two hundred ten liters of breath; and (3) her alcohol concentration resulted from alcohol consumed before or while she drove the vehicle. See § 66–8–102(D)(1); UJI 14–4506 NMRA. Defendant claims that she was entitled to a directed verdict because, other than her admission to driving, there was no other evidence that she drove or operated a motor vehicle.

{15} Defendant's contention that her admission was untrustworthy is a challenge to the sufficiency of the evidence based on the corpus delicti or trustworthiness rule. Cf. United States v. Brown, 617 F.3d 857, 860 (6th Cir.2010) (recognizing that the trustworthiness/corroboration requirement goes to sufficiency, not admissibility). The corpus delicti rule provides that commission of a crime cannot be proved solely through the admission of an extrajudicial confession. See State v. Paris, 76 N.M. 291, 294, 414 P.2d 512, 514 (1966) (recognizing that “unless the corpus delicti of the offense charged has been otherwise established, a conviction cannot be sustained solely on [the] extrajudicial confessions or admissions of the accused”). In New Mexico, the traditional corpus delicti rule has been abandoned, and courts apply a modified version of the trustworthiness rule adopted in Paris and recently applied and interpreted in State v. Weisser, 2007–NMCA–015, ¶ 17, 141 N.M. 93, 150 P.3d 1043 (acknowledging that New Mexico has adopted the modified trustworthiness doctrine espoused in State v. Lucas, 30 N.J. 37, 152 A.2d 50, 61 (1959)). Defendant claims that pursuant to the modified trustworthiness rule, there was insufficient proof to corroborate the trustworthiness of her admission that she was driving the vehicle. The State contends that the modified trustworthiness rule does not apply to Defendant's admission to driving because her identity as the driver is not part of the corpus delicti of the offense of DWI.

STANDARD OF REVIEW

{16} The pertinent facts are undisputed. Therefore, we apply a de novo standard of review to determine as a matter of law whether the uncontested facts were sufficient to establish the corpus delicti of aggravated DWI pursuant to the modified trustworthiness doctrine adopted and applied in New Mexico. See Weisser, 2007–NMCA–015, ¶ 7, 141 N.M. 93, 150 P.3d 1043.

CORPUS DELICTI OF DRIVING WHILE INTOXICATED

{17} The corpus delicti of an offense requires proof that a crime was committed, through direct or circumstantial evidence showing that (1) a loss or harm occurred, and (2) someone's criminal agency caused the loss or harm. See id. ¶ 10. In State v. Sosa, 2000–NMSC–036, ¶ 20, 129 N.M. 767, 14 P.3d 32, our Supreme Court succinctly...