State v. Wildgrube

• Citation: 75 P.3d 862,134 N.M. 262
• Decision Date: 23 June 2003
• Docket Number: No. 21,956.,21,956.
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David WILDGRUBE, Defendant-Appellant.

75 P.3d 862

134 N.M. 262

STATE of New Mexico, Plaintiff-Appellee, v. David WILDGRUBE, Defendant-Appellant.

No. 21,956.

Court of Appeals of New Mexico.

June 23, 2003.

Certiorari Denied August 15, 2003.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.

David Henderson, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 28,172, August 15, 2003.

OPINION

WECHSLER, Chief Judge.

{1} Defendant David Wildgrube appeals his conviction and sentence for homicide by vehicle in violation of NMSA 1978, § 66-8-101 (1991). Defendant challenges his conviction on the grounds of insufficient evidence to support the conviction, errors in the admission of evidence, prosecutorial misconduct, and errors in sentencing. He also contends that the State is bound by a post-trial agreement between the district attorney and Defendant. We affirm the conviction and sentence.

Background

{2} Late in the evening of September 10, 1999, after leaving a local bar called Zebediah's, Defendant struck the victim with his car as the victim walked along Highway 434 in Angel Fire, New Mexico. Defendant did not report the collision to the police even though he had in his car a cellular telephone and a ham radio, which could have been used to summon help. The collision killed the victim, whose body was found early the following morning lying in a field on the other side of the guard rail by three men who notified the police. After the police arrived at the scene, they were approached by an individual who told them that the car that struck the victim could be found at a nearby apartment complex. The Angel Fire Police Department dispatched Lieutenant Walker to the apartment complex. Upon his arrival, Lt. Walker received an additional notice that Defendant had just called 911 to report the incident. Lt. Walker found Defendant in the parking lot, standing by his damaged car, and advised him of his Miranda rights. The officer then asked Defendant about the events of the previous evening. After answering several questions, Defendant stated that he wanted to speak with an attorney. Upon completion of the police investigation, a grand jury indicted Defendant, charging him with homicide by vehicle and leaving the scene of an accident involving death or great bodily injury. Following the trial, Defendant was convicted of homicide by vehicle and acquitted of the second charge. The trial court imposed the statutory sentence for a third degree felony of six years and also adjudged the crime to be a serious violent offense. See NMSA 1978, § 31-18-15(A)(4) (1999); NMSA 1978, § 33-2-34(L)(4)(n) (1999).

Sufficiency of the Evidence

{3} Defendant contends that there was insufficient evidence presented at trial to convict him of vehicular homicide. We review the sufficiency of the evidence under a substantial evidence standard. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted). We must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt. State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994) (relying upon Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We view the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all permissible inferences to uphold the conviction, and disregarding all evidence and inferences to the contrary. State v. Salazar, 1997-NMSC-044, ¶ 44, 123 N.M. 778, 945 P.2d 996. In making this determination, a reviewing court "does not weigh the evidence and may not substitute its judgment for that of the fact finder so long as there is sufficient evidence to support the verdict." Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

{4} In this case, the jury was instructed, based on UJI 14-240 NMRA 2003, that the State was required to prove that Defendant "operated a motor vehicle while under the influence of intoxicating liquor or in a reckless manner" and "thereby caused the death of [the victim]." Defendant challenges only the sufficiency of the evidence regarding impairment and reckless driving; he does not dispute that his car struck and killed the victim.

{5} The jury received an instruction defining "under the influence of intoxicating liquor" as follows:

A person is under the influence of intoxicating liquor when as a result of drinking such liquor the person is 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.

UJI 14-243 NMRA 2003.

{6} Defendant contends that there was insufficient proof of impairment or intoxication presented at trial. He bases this contention on the testimony of two of the people drinking with him that evening who stated that Defendant did not appear to be intoxicated. Contrary to Defendant's assertion, however, there is ample evidence of impairment or intoxication in the record. During his direct testimony, Defendant admitted that he had consumed a half carafe of wine, approximately sixteen ounces, and two additional alcoholic drinks that evening. See State v. Omar-Muhammad, 105 N.M. 788, 792, 737 P.2d 1165, 1169 (1987)

(holding that defendant's testimony about marijuana use could support a conviction for vehicular homicide while under the influence of drugs). He also testified that he had not eaten anything at Zebediah's. The jury heard testimony from the Zebediah's bartender who confirmed Defendant's admissions and also stated that Defendant's last two drinks were mixed drinks, each of which contained one and one-half ounces of hard liquor. The State presented evidence that Defendant consumed this amount of alcohol in a two-hour period, having arrived at the bar at approximately 9:30 or 10:00 p.m. and having left at approximately 11:30 p.m. Although Defendant testified that his last two drinks, after the half carafe, had been wine rather than mixed drinks and that he had arrived at the bar at 7:30 p.m., the jury was free to reject Defendant's version of events. See Salazar, 1997-NMSC-044, ¶ 44,

123 N.M. 778,

945 P.2d 996. In addition, Defendant's testimony that he never saw the victim before hitting him was countered by two witnesses who drove on the same road that evening shortly before Defendant did and testified that they had seen the victim walking on the shoulder of the road. One of the witnesses testified that the shoulder was eight feet wide and that the victim had been walking about four or five feet from the edge of the roadway. Based on this evidence, the jury could have found that Defendant was less able "to exercise the clear judgment and steady hand necessary to handle a vehicle with safety." Reviewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Defendant operated a motor vehicle while under the influence of intoxicating liquor.

{7} There was also substantial evidence to support a jury determination that Defendant operated his vehicle in a reckless manner causing the death of the victim. A person has operated a motor vehicle in a reckless manner if he or she "drove with willful disregard of the safety of others and at a speed or in a manner that endangered or was likely to endanger any person." UJI 14-241 NMRA 2003. The evidence that Defendant had been drinking alcohol before driving is relevant to the jury's consideration of Defendant's recklessness. See State v. Sandoval, 88 N.M. 267, 268, 539 P.2d 1029, 1030 (Ct.App.1975)

. Defendant admitted that although it was pitch black outside and difficult to see anything, he continued to drive at 45 miles per hour while he looked away from the road to find his cell phone. Lt. Walker testified that Defendant told him he was leaning over to get his cell phone from the passenger side of his car when he hit something. The State's accident reconstruction expert testified that, based on the victim's leg injuries, the location of his body, and the location of the debris from Defendant's car, the victim was struck from behind by the right front bumper while he walked on the shoulder of the road. The pathologist from the Office of the Medical Investigator (OMI) who conducted the victim's autopsy testified that the victim had been struck squarely from behind and had suffered "an incredible amount of injury" for this kind of collision. Although Defendant testified that he looked to make sure there were no headlights coming over the hill, the jury could reasonably find that Defendant had operated a motor vehicle in a reckless manner that endangered another person by driving after drinking alcohol, deciding to lean over in the dark to get his cell phone, and driving onto the shoulder of the road. See State v. Romero, 69 N.M. 187, 189, 365 P.2d 58, 59 (1961) (concluding that defendant, who testified that the car he struck "`[came] out of nowhere,'" when it had been plainly visible to other witnesses, manifested conduct "so reckless, wanton, and wilful as to show an utter disregard for the rights of others"). The State's evidence was sufficient for the jury to find, beyond a reasonable doubt, that Defendant was guilty of homicide by vehicle. See State v. Munoz, 1998-NMSC-041, ¶ 22, 126 N.M. 371, 970 P.2d 143 ("[A] jury's guilty verdict in a vehicular homicide case is its determination that the defendant had the power to prevent the victim's death by driving lawfully instead of recklessly or while intoxicated.").

Admission of Evidence

{8} Defendant claims that the trial court committed reversible error (1) by refusing...