April 7, 2020- State of New Mexico v. Xavier Arthur Nelson, No. A-1-CA-37137

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37137	4
XAVIER ARTHUR NELSON,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Stan Whitaker, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Lauren J. Wolongevicz, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Nina Lalevic, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
IVES, Judge.	19
{1} 	Defendant Xavier Arthur Nelson was convicted, after a jury trial, of vehicular	20
homicide in violation of NMSA 1978, Section 66-8-101 (2016). Defendant asks us	21
to reverse his conviction, arguing that the district court erroneously admitted (1) data	22
retrieved from a device in his vehicle that recorded the speed Defendant’s vehicle	23
Court of Appeals of New Mexico
Filed 4/7/2020 11:48 AM

2
was traveling when it collided with the vehicle in which Victim was a passenger and	1
(2) testimony about driver perception and reaction times. Defendant also challenges	2
his sentence, arguing that the district court (3) lacked statutory authority to impose	3
six years of imprisonment for his offense and (4) lacked adequate evidentiary and	4
legal bases for concluding that his offense is a “serious violent offense” for purposes	5
of the Earned Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2015).	6
We affirm.	7
DISCUSSION1
8
I. 	The Admission of Testimony Regarding Speed Data Retrieved From	9
Defendant’s Vehicle’s Event Data Monitor Does Not Warrant Reversal	10
{2} 	Defendant argues that the district court committed reversible error by	11
admitting the testimony of James Sciolla as an expert witness under Rule 11-702	12
NMRA, and allowing him to testify about data regarding the speed Defendant’s	13
Subaru was traveling—data that Sciolla retrieved from the Subaru’s Event Data	14
Monitor (EDM). Reviewing this claim of error in the admission of expert testimony	15
under an abuse of discretion standard, see State v. Alberico, 1993-NMSC-047, ¶ 58,	16
116 N.M. 156, 861 P.2d 192, we disagree. The district court did not abuse its	17
1 Because 	the 	parties 	are 	familiar 	with 	the 	factual 	background, 	this
memorandum opinion does not include a background section. We describe the
pertinent facts in the discussion section.

3
discretion by admitting Sciolla’s testimony and, even if it had, any error was	1
harmless.	2
{3} 	Contrary to Defendant’s characterization, Sciolla’s testimony did not include	3
any interpretation or analysis of the EDM data or any other opinion testimony. The	4
district court specifically prohibited Sciolla from offering such opinions because	5
they were beyond the scope of his expertise. Consistent with this ruling, Sciolla	6
described the data he retrieved: that Defendant was driving 106 miles per hour before	7
the crash occurred. The district court did not abuse its discretion in determining that	8
Sciolla was qualified to describe that data. Sciolla testified that Subaru trained him	9
to perform these tasks and that he was a certified master technician, and he explained	10
how the speed sensors work and how the vehicle stores speed data. Defendant has	11
not persuaded us that the district court erred by admitting Sciolla’s testimony.	12
{4} 	Even if we were to conclude that the district court erred, we would not reverse	13
Defendant’s conviction because “there is no reasonable probability the error affected	14
the verdict.” State v. Armijo, 2014-NMCA-013, ¶ 13, 316 P.3d 902 (internal	15
quotation marks and citation omitted). Any such error was harmless because	16
Sciolla’s testimony was cumulative of other evidence of the extreme speed of	17
Defendant’s vehicle before the crash. Among other evidence, the State admitted a	18
photograph of Defendant’s speedometer, which indicates that Defendant was driving	19

4
approximately 110 miles per hour. We see no basis for concluding that the admission	1
of Sciolla’s testimony, if error, was prejudicial and therefore warrants a new trial.	2
II. 	The Admission of Testimony About Perception-Reaction Time Does Not	3
Warrant Reversal	4
{5} 	Defendant argues that the district court committed reversible error by	5
admitting 	testimony 	from 	the 	State’s 	accident 	reconstruction 	expert, 	Joseph	6
Manning, about how the speed of one vehicle impacts the perception and reaction	7
time of the driver of a second vehicle who might need to react to avoid a collision	8
with the first vehicle. Assuming without deciding that the admission of this	9
testimony was an abuse of discretion, see Alberico, 1993-NMSC-047, ¶ 58, we	10
conclude that any error was harmless for two reasons.	11
{6} 	First, although Manning initially testified about the potential perception-	12
reaction time of the driver of the vehicle in which Victim was a passenger, he	13
clarified during his direct examination that he could not determine any reaction times	14
in this case.	15
{7} 	Second, to the extent that the jury considered Manning’s initial testimony	16
about perception-reaction time, the State did not rely on that testimony to prove	17
Defendant’s speed of travel or recklessness. Manning’s initial testimony did not	18
pertain to Defendant’s perception-reaction times; it pertained to the driver of the	19
vehicle that was struck by Defendant’s vehicle. Notwithstanding the subject matter	20
of the testimony, Defendant asserts that the testimony had some bearing on whether	21

5
Defendant braked before the crash. However, Defendant fails to develop any	1
argument connecting the testimony in question to the issue of whether Defendant	2
applied his brakes, and we will not develop any such argument for him. See Elane	3
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will not	4
review unclear arguments, or guess at what a party’s arguments might be. To rule	5
on an inadequately briefed issue, this Court would have to develop the arguments	6
itself, effectively performing the parties’ work for them.” (alteration, internal	7
quotation marks, and citation omitted)).	8
{8} 	We conclude that the admission of the testimony in question, if erroneous,	9
was harmless. We therefore decline to reverse Defendant’s conviction on this basis.	10
III. 	The Appropriate Basic Sentence Was Six Years of Imprisonment	11
{9} 	Defendant claims that the district court erred by sentencing him to six years	12
of imprisonment, which is the enhanced basic sentence that applies when a person	13
is convicted of “a third degree felony resulting in the death of a human being,”	14
pursuant to NMSA 1978, Section 31-18-15(A)(8) (2016, amended 2019),2 rather	15
than the ordinary basic sentence for third degree felonies, which is three years.	16
Defendant acknowledges that his offense, vehicular homicide, is a third degree	17
felony that caused the death of another person. But he argues that the only offenses	18
2 In this opinion, unless otherwise indicated, all references to Section 31-18-
15(A) are to the 2016 version that was in effect at the time of Defendant’s
sentencing.

6
subject to a six-year basic sentence under Section 31-18-15(A)(8) are those that the	1
Legislature has explicitly identified as “resulting in the death of a human being” by	2
including that language in the statute defining the offense. According to Defendant,	3
because the homicide by vehicle statute does not include that phrase, the district	4
court lacked statutory authority to impose a basic sentence of six years. Reviewing	5
this question of statutory interpretation de novo, State v. Smith, 2004-NMSC-032,	6
¶ 8, 136 N.M. 372, 98 P.3d 1022, we disagree.	7
{10} 	As Defendant acknowledges, his argument cannot be reconciled with our	8
precedent. In State v. Shije, 1998-NMCA-102, ¶¶ 8-9, 125 N.M. 581, 964 P.2d 142,	9
we concluded that the absence of “magic language” in NMSA 1978, Section 31-18-	10
15(A)(2) (1994)—specifically the phrase “resulting in the death of a human	11
being”—is not dispositive in determining whether the enhanced basic sentence or	12
the ordinary basic sentence applies to the offense of conspiracy to commit second	13
degree murder. We reasoned that the purpose of enhanced basic sentences “is to	14
prevent crimes that result in people’s deaths[,]” and that it would undermine that	15
purpose to limit the application of the enhanced basic sentence for second degree	16
felonies resulting in death to offenses defined by statutes that include the specific	17
phrase. 	Shije, 1998-NMCA-102, ¶ 9. Accordingly, we held that because the	18
defendant was convicted of conspiracy to commit murder, and the murder actually	19
occurred, he was subject to the enhanced basic sentence. Id. ¶ 10.	20

7
{11} 	Applying Shije, we have previously considered and rejected Defendant’s	1
proposed holding. In State v. Guerro, 1999-NMCA-026, ¶ 1, 126 N.M. 699, 974	2
P.2d 669, the defendant was convicted of exactly the same crime that Defendant was	3
convicted of in this case: third degree vehicular homicide. The defendant in Guerro	4
argued that “because the vehicular homicide statute does not include the language	5
‘resulting in the death of a human being,’ our legislature did not intend to include	6
this crime in the six-year sentence authorized by [NMSA 1978,] Section 31-18-	7
15(A)(4) [(1999)].”3 Guerro, 1999-NMCA-026, ¶ 10. We disagreed, reiterating the	8
observation we made in Shije: the sentence increase “is intended to deter any crimes	9
that result in people’s deaths.” Guerro, 1999-NMCA-026, ¶ 11. We therefore held	10
that “[v]ehicular homicide . . . is encompassed by the statute.” Id.	11
{12} 	More recently, in State v. Franco, 2016-NMCA-074, 387 P.3d 279, we again	12
rejected the approach Defendant proposes here. In Franco, we concluded that the	13
Legislature intended for the enhanced basic sentence of fifteen years to apply “to all	14
second degree felonies resulting in deaths.” Id. ¶ 21. We reaffirmed that the purpose	15
of the enhanced basic sentences is “to increase the penalty for crimes involving the	16
death of a human being.” Id. ¶ 25. And we held that the enhanced basic sentence of	17
3 Section 31-18-15(A)(4) (1999) was the predecessor to Section 31-18-
15(A)(8), the statute on which the district court relied to determine Defendant’s basic
sentence. In 2003, the Legislature added subsections to Section 31-18-15, which
changed the subsection numbers, but the Legislature did not amend the language at
issue in Franco. See 2003 N.M. Laws, ch. 1, § 5.

8
fifteen years applied to the defendant’s offense—shooting at a motor vehicle, a	1
second degree felony which, in that instance, caused the death of an occupant—even	2
though our statutes did not specifically enumerate that offense as one to which the	3
enhanced basic sentence applied. Id. ¶¶ 1, 25.	4
{13} 	Defendant asks that we overrule all of these precedents, arguing that “Franco	5
is contrary to the Legislature’s sentencing scheme” and that legislative changes call	6
Guerro and Shije into question. Defendant directs our attention to the approach the	7
Legislature has chosen for assigning basic sentences to various offenses involving	8
child abuse resulting in death. Specifically, Defendant notes that NMSA 1978,	9
Section 30-6-1 (2009), creates tiered basic sentences, providing that (1) a person	10
convicted of “negligent abuse of a child that results in the death of the child is guilty	11
of a first degree felony[,]” Section 30-6-1(F); (2) a person convicted of “intentional	12
abuse of a child twelve to eighteen years of age that results in the death of the child	13
is guilty of a first degree felony[,]” Section 30-6-1(G); and (3) a person convicted of	14
“intentional abuse of a child less than twelve years of age that results in the death of	15
the child is guilty of a first degree felony resulting in the death of a child[,]” Section	16
30-6-1(H). Defendant notes that the Legislature chose to explicitly assign the	17
enhanced special basic sentence to intentional child abuse resulting in death of	18
children under twelve years old, and not to impose the enhanced basic sentence for	19
the other two first degree child abuse offenses. Defendant argues that despite this	20

9
different language, under Franco, Shije, and Guerro, all three of these offenses	1
would receive the enhanced basic sentence “for a first degree felony resulting in the	2
death of a child: life imprisonment.”	3
{14} 	Defendant misreads Franco, Shije, and Guerro, none of which involved a	4
legislative choice—within a single statute—to explicitly assign enhanced basic	5
sentences to some but not all closely related, but distinct, crimes. Nothing in our	6
precedents requires us to disregard such choices when the Legislature makes them.	7
The Legislature is free to calibrate sentences based on its assessment of the	8
seriousness of offenses, even if those offenses are all of the same degree, and the	9
Legislature has done just that in the context of first degree child abuse. See § 30-6-	10
1(F)-(H). But the Legislature did not do so in the statute at issue in Defendant’s case.	11
Instead, it simply provided that Defendant’s offense, which by definition results in	12
the death of a person, is a third degree felony. See § 66-8-101(D). As we have	13
explained, this triggers the enhanced basic sentence for third degree felonies	14
resulting in the death of a person. Nothing about the different approach the	15
Legislature chose to take with respect to child abuse offenses changes our analysis	16
here.4
17
4 Nor are we persuaded by Defendant’s argument based on the statutes
defining various offenses involving sexual exploitation of children. Defendant notes
that the Legislature has explicitly identified offenses involving child pornography as
warranting enhanced basic sentences, but that it has not done so for offenses
involving child prostitution. Defendant argues that the Legislature intended for the

10
{15} 	Defendant has not persuaded us that we should overrule our precedents, which	1
are consistent with the plain language of the statutes at issue and which further the	2
purpose of enhanced basic sentences for offenses that result in people’s deaths.	3
Those precedents require us to reject Defendant’s challenge to his enhanced basic	4
sentence.	5
IV. 	The 	District 	Court 	Did 	Not 	Err 	in 	Its 	Serious 	Violent 	Offense	6
Designation	7
{16} 	Defendant challenges the district court’s designation of his offense as a	8
serious violent offense pursuant to the EMDA—a designation that significantly	9
reduces the maximum amount of credit against his sentence that he can earn based	10
on good behavior while incarcerated. See NMSA 1978, § 33-2-34(A)(1)-(2) (2015)	11
(limiting credit to four days per month for serious violent offenses but allowing	12
credit of up to 30 days per month for other offenses). Specifically, Defendant	13
contends that (A) substantial evidence does not support the district court’s findings	14
that Defendant was driving 107 miles per hour at the time of the collision, that he	15
was weaving in and out of traffic, and that he did not use his brakes and (B) the	16
district court’s reasons for concluding that his offense is a serious violent offense—	17
ordinary basic sentences to apply to the child prostitution offenses. However,
Defendant was not convicted of any offense involving the sexual exploitation of
children and has not pointed to any analogous distinction between the statutes
defining various homicide offenses or other offenses that result in the deaths of
human beings.

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his speed, weaving, and failure to brake—are inadequate as a matter of law. We are	1
not persuaded.	2
{17} 	It is undisputed that Defendant did not make either of his EMDA arguments	3
in the district court, but the parties disagree about whether preservation is necessary	4
in this context and which standard of review applies. We assume without deciding	5
that the applicable standard of review is our usual one for preserved EMDA	6
arguments and that Defendant need not demonstrate fundamental error. We therefore	7
review the EMDA designation for abuse of discretion. State v. Lavone, 2011-	8
NMCA-084, ¶¶ 4-5, 150 N.M. 473, 261 P.3d 1105. A district court abuses its	9
discretion in its determination of whether an offense is a serious violent offense if	10
“its decision is not supported by substantial evidence[,]” State v. Montoya, 2005-	11
NMCA-078, ¶ 8, 137 N.M. 713, 114 P.3d 393, or “if it acts contrary to law.”5 State	12
v. Scurry, 2007-NMCA-064, ¶ 4, 141 N.M. 591, 158 P.3d 1034. “We review de novo	13
the legal basis for the court’s discretionary finding that Defendant's commission of	14
homicide by vehicle was a serious violent offense.” State v. Melendrez, 2014-	15
NMCA-062, ¶ 35, 326 P.3d 1126. We discuss the factual and legal bases for the	16
serious violent offender designation in turn.	17
A. 	Substantial Evidence Supports the Serious Violent Offender Findings	18
5 A district court may also abuse its discretion by making an unreasonable
“choice among alternatives,” Lavone, 2011-NMCA-084, ¶ 5, but Defendant does not
argue that the district court abused its discretion in this manner.

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{18} 	The district court made three findings to support its serious violent offense	1
designation. Substantial evidence supports all three.	2
{19} 	First, the district court found that Defendant’s vehicle was traveling 107 miles	3
per hour at the time of impact. The district court apparently found credible the	4
testimony of Joseph Manning, who the district court recognized as an expert in the	5
field of vehicle crash reconstruction. Manning testified that he calculated the impact	6
speed at 107 miles per hour based on the physical evidence, including the data	7
retrieved from the EDM device in Defendant’s vehicle. Other evidence buttresses	8
the district court’s finding. Two of the State’s exhibits, Exhibits 57 and 58, were	9
graphs based on data retrieved from a device in Defendant’s vehicle. Exhibit 57	10
showed a speed of 106 miles per hour (171 kilometers per hour) five seconds before	11
the side air bags were deployed. Exhibit 58 showed a vehicle speed of 108 miles per	12
hour (175 kilometers per hour) five seconds before the front air bags were deployed.	13
In addition, a photograph admitted into evidence as State’s Exhibit 16 depicts	14
Defendant’s 	speedometer, 	which 	reads 	approximately 	110 	miles 	per 	hour.	15
Collectively, this evidence provided ample support for the district court’s finding.	16
We recognize that Defendant testified that his speed never exceeded 85 miles per	17
hour on the night of the crash, but the district court was free to reject Defendant’s	18
testimony and conclude that he was driving significantly faster than he claimed. See	19
State v. Graham, 2005-NMSC-004, ¶ 11, 137 N.M. 197, 109 P.3d 285 (stating that	20

13
an appellate court will not “substitute our judgment for that of the fact[-]finder	1
concerning the credibility of witnesses or the weight to be given their testimony”	2
(internal quotation marks and citation omitted)).	3
{20} 	Substantial evidence also supported the district court’s second finding: that	4
Defendant was weaving through traffic. One eyewitness to the crash testified that he	5
saw Defendant’s vehicle “weaving in and out of traffic.” Another witness testified	6
that he saw Defendant’s car change lanes without signaling between cars at least	7
twice.	8
{21} 	The district court’s third finding—that Defendant did not apply his brakes	9
before the crash—was also based on substantial evidence. State’s Exhibit 58, the	10
graph of the front air bag data, indicates that the brakes on Defendant’s vehicle were	11
not applied before the accident. In addition, an eyewitness to the accident testified	12
that he did not see light emitting from the brake lights of Defendant’s car before the	13
crash.	14
B. 	The Serious Violent Offense Designation Is Not Legally Inadequate	15
{22} 	Our final task is to review de novo “whether the district court correctly applied	16
the EMDA during sentencing.” State v. Bravo, 2006-NMCA-019, ¶ 5, 139 N.M. 93,	17
128 P.3d 1070. The provision at issue here is in Section 33-2-34(L)(4). Subsections	18
(L)(4)(a) through (L)(4)(n) identify offenses that the Legislature has determined are	19
always serious violent offenses. Defendant’s offense, third degree homicide by	20

14
vehicle, is not one of the per se serious violent offenses. However, his offense is	1
among those that Subsection (L)(4)(o) places in a discretionary category. When an	2
offense falls into this category, a district court may designate it a serious violent	3
offense “when the nature of the offense and the resulting harm are such that the court	4
judges the crime to be a serious violent offense.” Section 33-2-34(L)(4)(o). Whether	5
a particular crime is a serious violent offense depends on whether it is “committed	6
in a physically violent manner either with an intent to do serious harm or with	7
recklessness in the face of knowledge that one’s acts are reasonably likely to result	8
in serious harm.” Melendrez, 2014-NMCA-062, ¶ 35 (internal quotation marks and	9
citation omitted).	10
{23} 	The district court’s reasons for its designation satisfy the requirements set in	11
the statute and our precedent. With respect to the physical violence of the offense,	12
the district court found that Defendant was driving at a speed of 107 miles per hour	13
when he struck the vehicle in which Victim was a passenger. The resulting crash	14
was violent enough to eject Victim from the vehicle. This is sufficient to meet the	15
violence requirement under our precedent. See State v. Solano, 2009-NMCA-098,	16
¶ 17, 146 N.M. 831, 215 P.3d 769 (“[The d]efendant recklessly veered across the	17
center line and struck the victim with sufficient force to propel her into the bed of	18
[the d]efendant’s truck. These facts directly relate to whether force was used in a	19
violent manner.”).	20

15
{24} 	Nor do we perceive any legal error in the district court’s conclusion that	1
Defendant acted with reckless disregard that his acts were reasonably likely to result	2
in serious harm. Melendrez, 2014-NMCA-062, ¶ 35. The district court properly	3
based that conclusion on a combination of Defendant’s speed, which the district	4
court found was “excessive and unreasonable,” his weaving in and out of traffic, and	5
his failure to apply his brakes before the crash.	6
{25} 	Defendant relies heavily on State v. Loretto, 2006-NMCA-142, ¶ 18, 140	7
N.M. 705, 147 P.3d 1138, in which we concluded that “[s]omething more than the	8
mere elements in the definition of [the offense] need[s] to be shown to designate the	9
crime as a serious violent offense.” Specifically, Defendant argues that weaving and	10
speeding were elements of his offense, and that “there must be something more than	11
speeding and weaving in and out of traffic” to justify a serious violent offense	12
designation. But the findings that the district court made in support of the serious	13
violent offender designation went well beyond what the jury had to find to return a	14
guilty verdict. To convict Defendant under the instructions it received, the jury had	15
to find that the State proved beyond a reasonable doubt that Defendant “drove with	16
willful disregard of the safety of others and at a speed or in a manner that endangered	17
or was likely to endanger any person.” Because the instruction is framed in the	18
disjunctive, it allowed a conviction based solely on Defendant’s excessive speed or	19
solely based on other aspects of Defendant’s driving. But the district court did not	20

16
rely on one alternative or the other. It relied on Defendant’s speed and two other	1
aspects of his driving: weaving through traffic and failing to brake.6 We therefore	2
conclude that the district court did not run afoul of Loretto.	3
{26} 	Defendant has not persuaded us that the district court’s serious violent offense	4
designation suffers from any factual or legal infirmity.	5
CONCLUSION	6
{27} 	We affirm Defendant’s conviction and sentence.	7
{28} 	IT IS SO ORDERED.	8
______________________________	9
ZACHARY A. IVES, Judge	10
WE CONCUR:	11
______________________________	12
J. MILES HANISEE, Chief Judge	13
______________________________	14
MEGAN P. DUFFY, Judge	15
6 Because the three findings in this case, considered together, adequately
support the designation, we need not decide whether any subset of those findings
would suffice.