April 15, 2019- State of New Mexico v. Wesley Davis, No. A-1-CA-37761

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 4/15/2019 10:06 AM
Plaintiff-Appellee, ~~
Mark Reynolds
v. NO. A-1-CA-37761
WESLEY DAVIS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

Angie K. Schneider, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{3 Defendant appeals his conviction for driving while under the influence of

intoxicating liquor (DWI). We issued a notice of proposed summary disposition

proposing to affirm, and Defendant has responded with amemorandum in opposition.

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We have considered Defendant’s arguments and remain unpersuaded that our initial
proposed disposition was incorrect. We therefore affirm.

{2} Defendant continues to argue that the evidence was insufficient to support his
conviction for aggravated DWI. “The test for sufficiency of the evidence is whether
substantial evidence of either a direct or circumstantial nature exists to support a
verdict of guilt beyond a reasonable doubt with respect to every element essential to
a conviction.” State v. Duran, 2006-NMSC-035, 9 5, 140 N.M. 94, 140 P.3d 515
(internal quotation marks and citation omitted). We view the evidence “in the light
most favorable to the guilty verdict, indulging all reasonable inferences and resolving
all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-
NMSC-009, 26, 128 N.M. 711, 998 P.2d 176. “We will not substitute our judgment
for that of the factfinder, nor will we reweigh the evidence.” State v. Trujillo, 2012-
NMCA-092, 4 5, 287 P.3d 344.

3} In order to convict Defendant of aggravated DWI, the State was required to
prove: (1) Defendant operated a motor vehicle, (2) “[a]t that time [D]efendant was
under the influence of intoxicating liquor; that is, as a result of drinking liquor
[D]efendant was 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[,]” and (3) “[D]efendant refused to submit to

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chemical testing[.]” [RP 139] See State v. Smith, 1986-NMCA-089, 4 7, 104 N.M.
729, 726 P.2d 883 (“Jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.”). Defendant challenges both the
sufficiency of the evidence to establish impaired driving and the sufficiency of the
evidence to show that he refused to submit to chemical testing. See NMSA 1978,
§ 66-8-102(D)(3) (2016) (stating that aggravated driving under the influence consists
of refusing to submit to chemical testing, as provided for in the Implied Consent Act
while in the judgment of the court, based upon evidence of intoxication presented to
the court, the driver was under the influence of intoxicating liquor or drugs); § 66-8-
102(B) (stating that is unlawful for a person who is under the influence of any drug
to a degree that renders the person incapable of safely driving a vehicle to drive a
vehicle within this state).

{4} At trial, Officer Marc Davis testified that he observed Defendant passing
another vehicle, driving 52 mph in a 35 mph zone. [RP 256] When Officer Davis
made contact with Defendant, he noticed the odor of alcohol and asked Defendant if
he had anything to drink. Defendant responded that his passenger had been drinking.
[RP 257] When Officer Davis then had Defendant step out of the vehicle to separate
him from the passenger, Defendant swayed as he walked. [RP 257] Officer Davis

testified that he still noticed the odor of an alcoholic beverage coming from

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Defendant, even though Defendant was by now separated from the passenger. [RP
257] Officer Davis then informed Defendant that he would perform field sobriety
tests (FSTs), utilizing alternate tests to accommodate Defendant’s comfort level and
the fact that he was wearing house shoes. [RP 257] Officer Davis testified that
Defendant was unable to complete the finger count test and was unable to recite the
alphabet from D to Z without skipping letters. [RP 257-258] Defendant was also
unable to follow instructions during the HGN test and swayed while standing. [RP
258]

{5} Officer Davis then arrested Defendant for DUI and again asked him if he had
anything to drink. This time Defendant admitted to having drunk “a couple.” [RP
258] Officer Davis read Defendant the relevant portions of the Implied Consent Act,
and Defendant refused to submit to a chemical test. [RP 258] This evidence is
sufficient to support Defendant’s conviction for aggravated DWI. See State v. Loya,
201 1-NMCA-077, {J 18-20, 150 N.M. 373, 258 P.3d 1165 (holding that sufficient
evidence supported a conviction for aggravated DUI where the defendant drove with
bloodshot, watery eyes, had slurred speech and an odor of alcohol, the defendant
admitted to drinking, and the defendant refused to submit to chemical testing after
being read the Implied Consent Act); see also State v. Sanchez, 2001-NMCA-109,

4 9, 131 N.M. 355, 36 P.3d 446 (“The [s]tate can use evidence of a driver’s refusal

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to consent to the field sobriety testing to create an inference of the driver’s
consciousness of guilt.”).

{6} | Inhismemorandum in opposition, Defendant argues that there was no evidence
that the manner of his driving showed impairment or that he had bloodshot, watery
eyes or slurred speech. [MIO 5-7] Defendant points out that he was able to provide
Officer Davis with his license and registration without apparent difficulty. [MIO 7]
Defendant also argues that his performance on the alternative FSTs was due to his
disability and that Officer Davis never asked him whether he suffered from mental
or physical disabilities that would affect his performance. [MIO 6-7]

{7} We view this as an argument that the jury improperly weighed the evidence,
which we do not consider on appeal. See State v. Slade, 2014-NMCA-088, { 13, 331
P.3d 930 (stating that the appellate courts “do not search for inferences supporting a
contrary verdict or re-weigh the evidence because this type of analysis would
substitute an appellate court’s judgment for that of the jury” (internal quotation marks
and citation omitted)); see also State v. Akers, 2010-NMCA-103, J 32, 149 N.M. 53,
243 P.3d 757 (“We do not weigh the evidence or substitute our judgment for that of
the factfinder.”’). For the reasons described above, the evidence was sufficient to
allow the jury to infer that Defendant was impaired to the slightest degree when he

operated the motor vehicle.

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{83} Defendant also continues to argue that the evidence was insufficient to show
that he willfully refused to submit to chemical testing. [MIO 8-10] Defendant points
to his testimony that he asked for an independent chemical test in lieu of the
government administered test. [MIO 8] However, our review of the record indicates
that Sergeant Davis testified that, after he read Defendant the Implied Consent Act,
Defendant refused to submit to testing. [RP 258, 260] This is sufficient to prove that
Defendant refused to submit to chemical testing, as the jury was not required to
believe Defendant’s version of events. See State v. Stefani, 2006-NMCA-073, § 39,
139 N.M. 719, 137 P.3d 659 (noting that the jury is free to reject the defendant’s
theory of the case); see also State v. Delgado, 2010-NMCA-078, § 6, 148 N.M. 870,
242 P.3d 437 (“It is for the jury to resolve the conflicts in the evidence.”). We further
note that, although a defendant has the right to be afforded an opportunity to an
independent test, that right is not triggered until the defendant first submits to the
State administered test. See State v. Smith, 2018-NMCA-___,§8,___—P.3d__(No.
A-1-CA-34796, February 18, 2019) (recognizing that, under the plain language of
Section 66-8-109(B), a defendant’s right to arrange for independent chemical testing
is triggered only if she first submits to the test police ask her to take).
CONCLUSION

{9} For these reasons, we affirm Defendant’s conviction.

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{10}

IT IS SO ORDERED.

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J. MILES HANISEE, Judge

WE CONCUR:

MV,

M. MONICA ZAMO Ra Cet Jude
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JE ER L. ATTREP, Judge