June 25, 2009 – State of New Mexico v. Timothy Solano, No. 28,166

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ June 25, 2009

NO. 28,166

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

TIMOTHY SOLANO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attomey General
Santa Fe, NM
Steven S Suttle, Special Counsel

Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
CASTILLO, Judge.
{1} 	Defendant challenges the district court’s designation of his conviction for third
degree vehicular homicide as a serious violent offense for the purposes of the Earned
Meritorious Deductions Act (the EMDA), NMSA 1978, § 33-2-34 (2004) (amended
2006). 	We conclude that the district court’s designation was not an abuse of
discretion because (1) the factual findings were legally sufficient to satisfy this
Court’s requirements in State v. Morales, 2002-NMCA-016, 131 N.M. 530, 39 P.3d
747 (filed (2001) and (2) substantial evidence supported those findings. Accordingly,
we affirm the district court.
I. 	BACKGROUND
{2} 	On July 27, 2005, Defendant struck and killed the victim with his vehicle.
Defendant’s blood alcohol level tested at .23 and .24. On August 12, 2005, Defendant
was charged in district court with one count of homicide by vehicle, contrary to
NMSA 1978, Section 66-8-101 (2004). Defendant waived indictment, pled guilty,
and judgment was entered on August 15, 2005. 	The district court committed
Defendant to the corrections department for sixty days for the purposes of diagnosis
and evaluation.
{3} 	The sentencing hearing was held on November 23, 2005, during which the

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district court heard from the victim’s family. The State recommended the maximum
sentence. 	The district court imposed the maximum sentence and designated the
conviction to be a serious violent offense, thus limiting the amount of good time credit
that Defendant could earn. 	The district court commended Defendant for taking
responsibility for his actions and suspended two years of the sentence based on this
and Defendant’s remorse.
{4} 	Defendant appealed the serious violent offender designation to this Court. By
memorandum opinion, this Court remanded the matter back to the district court
because the findings supporting the serious violent offense designation were
insufficient to satisfy the established legal standard. State v. Solano, No. 26,403, slip
op. at 3-4 (N.M. Ct. App. July 24, 2007). On remand, the district court held a second
sentencing hearing. 	The court made additional findings and imposed the same
sentence, including the serious violent offense designation. Defendant again appeals
his sentence.
II. 	DISCUSSION
{5} 	Defendant makes two arguments in the current appeal. 	First, Defendant
contends that the district court’s findings on remand were again insufficient to support
a serious violent offense designation. 	Second, Defendant argues that the district
court’s serious violent offense designation was not supported by substantial evidence.

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In addition, Defendant and the State dispute the standard for our review. We begin
with the standard of review and a brief overview of the EMDA, and then we turn to
Defendant’s arguments.
A. 	Standard of Review
{6} 	Defendant argues that we apply both a de novo and a substantial evidence
standard. He states that we consider de novo whether the district court’s findings are
in compliance with the EMDA and then consider whether the designation was
supported by substantial evidence. The State contends that we conduct our review for
abuse of discretion. 	Although we agree with the State that the proper standard is
abuse of discretion, we observe that Defendant’s approach effects the same result.
{7} 	Our Supreme Court has explained that the judiciary has no role in the
administration of the EMDA apart from exercising “discretion to determine whether
the nature of the offense and the resulting harm in a particular factual context justify
categorizing the offense as a serious violent offense.” State v. Rudolfo, 2008-NMSC-
036, ¶ 37, 144 N.M. 305, 187 P.3d 170. Nevertheless, “[a]lthough the determination
that a crime that falls within the district court’s discretionary authority under the
EMDA as a serious violent offense is a discretionary act, the district court will abuse
its discretion if it acts contrary to law.” State v. Scurry, 2007-NMCA-064, ¶ 4, 141
N.M. 591, 158 P.3d 1034. In addition, a district court abuses “its discretion when its

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decision is not supported by substantial evidence.” State v. Montoya, 2005-NMCA-
078, ¶ 8, 137 N.M. 713, 114 P.3d 393. Thus, we review the district court’s findings
and subsequent serious violent offender designation “for sufficient evidence, for legal
error, as well as for an untenable choice between or among alternatives.” 	State v.
Gonzales, 2005-NMSC-025, ¶ 25, 138 N.M. 271, 119 P.3d 151 (describing the scope
of appellate review under the abuse of discretion standard).
{8} 	We now turn to the relevant language of the EMDA and its accompanying case
law.
B. 	The EMDA
{9} 	Under Section 33-2-34, a prisoner may earn meritorious deductions under
certain circumstances. If the offense is a nonviolent offense, the defendant may earn
up to thirty days per month of time served. Section 33-2-34(A)(2). If the offense of
conviction is designated as a serious violent offense, however, the sentence reduction
is limited to no more than four days per month of time served. Section 33-2-34(A)(1).
A “nonviolent offense” is defined as “any offense other than a serious violent
offense.” Section 33-2-34(L)(3). A “serious violent offense” is defined in two ways.
Section 33-2-34(L)(4)(a) through (n) enumerates specific crimes that are per se serious
violent offenses—crimes that are designated serious violent offenses regardless of the
circumstances. Section 33-2-34(L)(4)(o) lists several other specific crimes that may

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be considered serious violent offenses “when the nature of the offense and the
resulting harm are such that the court judges the crime to be a serious violent offense
for the purpose of this section.” Included among these discretionary serious violent
offenses is Defendant’s crime—third degree homicide by vehicle, as prohibited by
Section 66-8-101. See § 33-2-34(L)(4)(o)(14).
{10} 	This Court has previously addressed the differences between the per se serious
violent offenses under Section 33-2-34(L)(4)(a) through (n) and the discretionary
designations under Section 33-2-34(L)(4)(o). In order to designate the conduct of a
particular defendant as a serious violent offense under the discretionary category, the
district court must determine that the crime was “committed in a physically violent
manner either with an intent to do serious harm or with recklessness in the face of
knowledge that one’s acts are reasonably likely to result in serious harm.” Morales,
2002-NMCA-016, ¶ 16. This factual basis for designation of a serious violent offense
must be reflected in findings made by the district court. Id. ¶¶ 17-18. This Court has
since clarified the requirement for such findings and has explained that a district court
“need not express its findings in the Morales language as long as the findings are
consistent with the Morales standard.” Montoya, 2005-NMCA-078, ¶ 8. Turning to
the facts of the present case, we consider the sufficiency of the district court’s
findings.

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C. 	The District Court’s Findings
{11} 	The district court made two findings relevant to the Morales criteria:
This sentence finds that the offense was committed in a physically
violent manner with recklessness in the face of knowledge that his acts
were reasonably likely to result in serious harm.
Th[is c]ourt [has] consider[ed] [Defendant’s] prior history of
alcohol abuse along with prior criminal history involving alcohol related
offenses not used to enhance his sentence. 	The [c]ourt makes the
specific finding [that Defendant’s] actions amount to an offense
committed in a physical violent manner in that he crossed the center and
struck the victim, who was on a bicycle and propelled her through the air
and into the bed of his truck.
Defendant first argues that the district court’s factual findings in the post-remand
order do not indicate “why this particular instance of vehicular homicide was, based
on the uncontested facts, more egregious than any other vehicular homicide case.” As
we have stated, the serious violent offense inquiry rests on two factors: 	(1) the
physically violent manner in which the crime was committed and (2) the level of
intent demonstrated by the defendant’s actions. See Morales, 2002-NMCA-016, ¶ 16.
Defendant cites no authority to suggest that the district court is further required to find
that the particular offense was “more egregious” than other similarly categorized
offenses, and we therefore assume that no such authority exists. See State v. Vaughn,
2005-NMCA-076, ¶ 42, 137 N.M. 674, 114 P.3d 354.
{12} 	Defendant next argues that the facts recited by the district court do not establish

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the Morales criteria. Specifically, Defendant contends that the district court’s reliance
on his history of alcoholism and previous alcohol-related convictions do not support
an inference of the requisite intent and that the district court’s recitation of the facts
surrounding the manner of the victim’s death do not establish that this vehicular
homicide was committed in a physically violent manner. We disagree.
1. 	History of Alcohol Abuse
{13} 	Defendant provides several bases for the argument that his history does not
demonstrate the requisite intent. He first argues that to rely on past convictions to
support a serious violent offense designation is inappropriate because he was already
punished for those offenses. 	He then asserts that the Legislature was undoubtedly
aware that it is not uncommon for perpetrators of vehicular homicide to have prior
convictions and had it intended for the district court to consider past offenses, it would
have included vehicular homicide as a per se serious violent offense. Next, Defendant
points to Section 66-8-101(D) and argues that because the Legislature does not permit
a sentence enhancement to be based on a vehicular homicide conviction that is more
than ten years old, the Legislature also did not intend for convictions that are greater
than ten years old “to form the basis for the imposition of further punishment.”
Finally, 	Defendant 	relies 	on 	a 	United 	States 	Department 	of 	Transportation
report—referred to for the first time on appeal—to contend that “it is quite unlikely

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that a given drunk driving episode will result in great bodily harm.” 	During this
appeal, the State filed a motion to strike references to the study from Defendant’s brief
in chief because the report was not offered as evidence during the district court
proceedings or made a part of the record. Although we denied the State’s motion to
strike the references to the report, we did so with the proviso that we would not
consider 	the 	report 	on 	appeal. 	Because Defendant’s 	argument 	is 	otherwise
unsupported, we do not address it.
{14} 	We initially observe that Defendant’s first three arguments fail to explain why
a defendant’s extensive history of abusing alcohol would not permit an inference of
knowledge or recklessness. The first and third arguments relating to past convictions
and additional punishment have been addressed by this Court and our Supreme Court
in the past. “[T]he EMDA does not change the maximum penalty for a defendant’s
crime or impose an additional penalty. Rather, the statute affects the amount of time
by which [a] defendant through his own good conduct could decrease his sentence.”
State v. Andazola, 2003-NMCA-146, ¶ 21, 134 N.M. 710, 82 P.3d 77 (internal
quotation marks and citation omitted); see also State v. Schoonmaker, 2008-NMSC-
010, ¶ 53, 143 N.M. 373, 176 P.3d 1105 (“Limiting a defendant’s ability to earn
meritorious deductions does not result in punishment beyond that which has been
statutorily 	established 	for 	the 	offense.”). 	Thus, 	considering 	a 	defendant’s

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history—criminal or otherwise—does not lead to impermissible further punishment.
{15} 	Defendant’s second argument appears to be that because so many vehicular
homicides are caused by repeat offenders and vehicular homicides are not classified
as per se offenses, the Legislature intended for the courts to ignore evidence of past
transgressions. Defendant maintains that any other interpretation of the Legislature’s
intent transforms all vehicular homicides into serious violent offenses. This Court
explained in Morales, however, that discretionary serious violent offenses “are
characterized by multiple ways of committing the offense, some intentional and some
not, and some utilizing physical force and some not.” 2002-NMCA-016, ¶ 15. Thus,
some incidents of vehicular homicide qualify as serious violent offenses and some do
not. It is only the evidence of a particular incident that qualifies a defendant’s crime
as a discretionary serious violent offense. 	We conclude that the particular
circumstances of Defendant’s history with alcohol and the law was relevant to the
Morales inquiry into intent, and we are satisfied that this conclusion does not
generally elevate vehicular homicide to a per se violent offense. See State v. Worrick,
2006-NMCA-035, ¶ 9, 139 N.M. 247, 131 P.3d 97 (considering the defendant’s
extremely high blood alcohol content at the time of the accident as well as that the
defendant “habitually drank to the point of intoxication two times a week”); see also
Montoya, 2005-NMCA-078, ¶¶ 9-10 (“The knowledge aspect is shown by the long,

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prior history of a drinking problem.”); State v. Wildgrube, 2003-NMCA-108, ¶ 37,
134 N.M. 262, 75 P.3d 862 (evaluating, for the purposes of the EMDA, the
defendant’s previous four arrests for alcohol-related offenses and two convictions for
driving while intoxicated).
2. 	Physically Violent Manner
{16} 	Defendant next argues that the “fact that [Defendant] crossed the center and hit
a bicyclist, while ostensibly going to the manner in which the crime was committed,
does not sufficiently establish that [Defendant’s] act was committed in a particularly
violent manner.” Defendant also contends that nearly all vehicular homicides cause
a particularly violent death for the victim and that the district court impermissibly
relied on an element of vehicular homicide in order to designate the crime a serious
violent offense.
{17} 	This Court has not previously been required to define “physically violent
manner.” The Morales Court, however, acknowledged that even though the record
in that case was sparse, there might have been a factual basis for the findings
necessary to establish a serious violent offense. 2002-NMCA-016, ¶ 18. Although
Morales ultimately remanded the issue to the district court to make the findings on the
record, this Court observed that the defendant “used physical force with his daughter
in a manner that indicated an intent to do so” and that the victim suffered some harm.

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Id. Thus, the term “physically violent manner” includes the intentional use of force
that results in some harm. In the present case, the district court’s findings—findings
that were missing in Morales—directly address the use of physical force, intent, and
harm to the victim. See id. ¶ 16 (“[T]he [L]egislature wanted to reserve the serious
violent offenses for those found by the trial judge to be committed in a physically
violent manner either with an intent to do serious harm or with recklessness in the face
of knowledge that one’s acts are reasonably likely to result in serious harm. Of course,
the statutory factor of actual resulting harm may be considered in determining a
defendant’s intent.” (internal quotation marks omitted)). Defendant recklessly veered
across the center line and struck the victim with sufficient force to propel her into the
bed of Defendant’s truck. These facts directly relate to whether force was used in a
violent manner. See id. ¶ 18.
{18} 	Defendant additionally insists that the district court is required to consider the
physically violent manner in which the offense was committed and not the physically
violent death of the victim. In State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147
P.3d 1138, this Court explained that “[s]omething more than the mere elements in the
definition of [the crime] need to be shown to designate the crime as a serious violent
offense.” Id. ¶ 18. One of the elements of vehicular homicide is that the defendant
commit homicide by using a motor vehicle. See § 66-8-101(A). The facts set out in

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the preceding paragraphs demonstrate that the district court considered more than the
mere use of a vehicle to commit the homicide: 	Defendant recklessly operated the
truck at a high rate of speed that caused the victim, once struck, to be “propelled . . .
through the air and into the bed of Defendant’s truck.” We are thus satisfied that the
findings sufficiently detail the violent manner in which the crime was committed and
not merely the elements of the crime or the violent nature of the victim’s death.
{19} 	We now turn to consider whether these findings are supported by sufficient
evidence.
D. 	Sufficiency of the Evidence
1. 	Begay v. United States
{20} 	The focus of Defendant’s sufficiency argument is that this Court should
reconsider the application of a serious violent offense designation to the crime of
vehicular homicide in light of the recent holdings and analysis of Begay v. United
States, ___ U.S. ___, 128 S. Ct. 1581 (2008). In Begay, the Supreme Court of the
United States was concerned with whether the crime of driving under the influence
of alcohol should be considered a violent felony as described by 18 U.S.C. § 924(e)(1)
(2000) (amended 2005 and 2006) of the Armed Career Criminal Act (ACCA). Begay,
___ U.S. at ___, 128 S. Ct. at 1583. 18 U.S.C. § 924(e)(1) provides that
[i]n the case of a person who violates [18 U.S.C. §] 922(g) [(2002)] of
this title and has three previous convictions by any court referred to in

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[18 U.S.C. §] 922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one another,
such person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a probationary sentence to,
such person[.]
The district court in Begay determined that the defendant’s three prior convictions for
driving under the influence of alcohol constituted violent felonies and imposed the
resulting mandatory fifteen-year prison term. ___ U.S. at ___, 128 S. Ct. at 1584.
The Supreme Court of the United States disagreed and held that Congress did not
intend “to bring within the statute’s scope these kinds of crimes, far removed as they
are from the deliberate kind of behavior associated with violent criminal use of
firearms.” 	Id. at 1587. 	Defendant argues that the Begay construction of the term
“violent felony” leads to a conclusion that the EMDA has been improperly construed
by New Mexico courts to include overly general and common occurrences of
vehicular homicide. 	We are unpersuaded that Begay requires us to reconsider our
previous constructions of the EMDA.
{21} 	We first observe that under the ACCA, driving under the influence is not an
offense 	specifically 	listed 	as 	a 	violent 	felony. 	The 	ACCA, 	18 	U.S.C.
§ 924(e)(2)(B)(ii), provides a list of examples of crimes that are violent felonies such
as burglary, arson, extortion, or crimes involving explosives. This list is clearly not
exhaustive, see 18 U.S.C. § 924(e)(2)(B) and, therefore, the Begay Court was required

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to analogize the crime of driving under the influence to the other exemplar crimes that
are listed in the ACCA. ___ U.S. at ___, 128 S. Ct. at 1584-85 (“In our view, the
provision’s listed examples—burglary, arson, extortion, or crimes involving the use
of explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their
presence indicates that the statute covers only similar crimes, rather than every crime
that presents a serious potential risk of physical injury to another.” (internal quotation
marks and citation omitted)). Such analogy is not required in the present case because
third degree vehicular homicide is an offense listed in the EMDA as a discretionary
serious violent offense. See § 33-2-34(L)(4)(o)(14). There is thus no need to compare
Defendant’s crime with the other listed crimes because the Legislature clearly
intended to include vehicular homicide within the scope of the EMDA when the
district court “judges the crime to be a serious violent offense.” Id. {22} 	T h e
Begay Court was also concerned that statutes prohibiting driving under the influence
“typically do not insist on purposeful, violent, and aggressive conduct; rather, they
are, or are most nearly comparable to, crimes that impose strict liability, criminalizing
conduct in respect to which the offender need not have had any criminal intent at all.”
___ U.S. at ___, 128 S. Ct at 1586-87. The examples of violent felonies in the ACCA,
however, “all typically involve purposeful, violent, and aggressive conduct.” Id. at
___, 128 S. Ct. at 1586 (internal quotation marks and citation omitted). Defendant

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makes a similar point that “[b]y including third[ ]degree homicide in a statute where
the intent requirement is otherwise specific, the [L]egislature evidently intended for
there to be a somewhat heightened intent requirement for a particular vehicular
homicide case to constitute a serious violent offense.” 	The concerns of the Begay
Court and Defendant were addressed by this Court’s holding in Morales.
{23} 	In Morales, this Court compared the list of per se offenses from Section 33-2-
34(L)(4)(a) through (n) with the discretionary offenses described in Section 33-2-
34(L)(4)(o). We observed that the per se offenses “all involve an intent to do the harm
prohibited by the statute, or a specific intent to kill or injure, or knowledge that one’s
acts are reasonably likely to cause serious harm.” Morales, 2002-NMCA-016, ¶ 14.
The discretionary offenses, however, “are characterized by multiple ways of
committing the offense, some intentional and some not, and some utilizing physical
force and some not.” Id. ¶ 15. We concluded that
the [L]egislature wanted to reserve the serious violent offenses for those
found by the trial judge to be committed in a physically violent manner
either with an intent to do serious harm or with recklessness in the face
of knowledge that one’s acts are reasonably likely to result in serious
harm.
Id. ¶ 16. 	Thus, in order for one of the discretionary crimes to be designated as a
serious violent offense, the district court must find that it was committed with “an
intent to do serious harm” or “with recklessness.” Id.

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{24} 	Defendant argues that recklessness is an insufficient level of intent to support
a serious violent offense designation. For support, Defendant again cites Begay, in
which the Supreme Court of the United States rejected the application of a
recklessness standard because unlike the other crimes listed in the ACCA, the act of
driving drunk “need not be purposeful or deliberate.” ___ U.S. at ___, 128 S. Ct. at
1587. Taking our cue from the Begay Court and comparing vehicular homicide to the
other enumerated discretionary serious violent offenses, we conclude that recklessness
is an acceptable level of intent. Other discretionary crimes listed under Section 33-2-
34(L)(4)(o) incorporate the recklessness standard or in some circumstances, the lesser
negligence standard. See State v. Yarborough, 120 N.M. 669, 674, 905 P.2d 209, 214
(Ct. App. 1995) (requiring conduct that is “reckless, wanton, or willful” in order to
establish involuntary manslaughter (internal quotation marks and citation omitted)),
aff’d, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131; see also NMSA 1978, § 30-6-
1(D), (E) (2005) (amended 2009) (identifying the intent for child abuse as
“knowingly, intentionally or negligently, and without justifiable cause). 	Indeed,
recklessness is even sufficient for at least one of the per se offenses under Section 33-
2-34(L)(4)(a) through (n). 	See NMSA 1978, § 30-3-8(B) (1993) (“Shooting at or
from a motor vehicle consists of willfully discharging a firearm at or from a motor
vehicle with reckless disregard for the person of another.”).

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{25} 	Begay also focused on the unique purpose of the ACCA: “the [ACCA] focuses
upon the special danger created when a particular type of offender—a violent criminal
or drug trafficker—possesses a gun.” ___ U.S. at ___, 128 S. Ct. at 1587. Because
the ACCA focuses on preventing certain types of offenders from owning guns, the
Begay Court had “no reason to believe that Congress intended to bring within the
statute’s scope these kinds of crimes, far removed as they are from the deliberate kind
of behavior associated with violent criminal use of firearms.” Id. The purpose of the
EMDA is entirely different: “In the EMDA, the Legislature has established a detailed
set of guidelines for both the courts and the corrections department to administer in
the ultimate determination of a prisoner’s eligibility for good time reductions from his
period of confinement.” Rudolfo, 2008-NMSC-036, ¶ 35. The purpose of the EMDA
is not to prevent certain types of offenders from obtaining weapons. 	Instead, the
EMDA is designed to reduce the period of confinement by a designated number of
days each month of time served for the perpetrators of certain offenses that have been
specifically delineated by the Legislature. We therefore see every reason to believe
that the Legislature intended to bring certain instances of vehicular homicide within
the scope of the EMDA and are not persuaded that Begay requires a different result.
2. 	Evidence at Sentencing
{26} 	In addition to relying on Begay, Defendant also argues that the evidence was

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simply insufficient to establish that his conduct constituted a serious violent offense.
This argument is distinct from Defendant’s earlier argument regarding the adequacy
of the district court’s findings. 	See Scurry, 2007-NMCA-064, ¶ 4 (declining to
address the sufficiency of the evidence after concluding that the findings were
insufficient as a matter of law). Having determined that the district court’s findings
are legally adequate, we review the record to ascertain whether the facts support the
findings and hence, the serious violent offense designation.
{27} 	As we have stated, in order to designate a particular crime as a serious violent
offense, the district court must find that it was “committed in a physically violent
manner either with an intent to do serious harm or with recklessness in the face of
knowledge that one’s acts are reasonably likely to result in serious harm.” Morales,
2002-NMCA-016, ¶ 16. Defendant argues that in addition to the Morales criteria, the
State must also demonstrate that this particular vehicular homicide differs from other
homicides caused by intoxicated or otherwise impaired drivers. We are satisfied that
the Morales criteria adequately separate the average vehicular homicide from a
properly designated serious violent offense and, thus, we decline to consider whether
Defendant’s acts were “notably worse than any other such case.”
{28} 	Morales explained how vehicular homicide can be committed with and without
the requisite intent:

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[H]omicide by vehicle always results in death, but it can be committed
by one who had only one drink but is thereby less able to drive safely, or
it can be committed by one who intentionally and habitually gets drunk
to the point of being several times over the legal limit, knowing that he
or she must drive in a crowded area and is in no shape to do so, but does
so nevertheless.
Id. ¶ 15. 	In the present case, the district court based the serious violent offense
designation in part on Defendant’s history of alcoholism and alcohol-related offenses.
This history is supported by the facts revealed at the sentencing hearings. 	See
Montoya, 2005-NMCA-078, ¶¶ 8-9 (reviewing the facts and circumstances before the
district court to determine if substantial evidence supported the serious violent offense
designation).
{29} 	Apart from the two convictions for driving under the influence that were used
to enhance the sentence, Defendant also had earlier alcohol-related accidents and
encounters with the police, ranging back at least as far as 1993. 	One of these
accidents resulted in bodily injury to a victim. The district court additionally noted
that Defendant had many opportunities for treatment but failed to embrace them.
After remand by this Court, the district court explained that the serious violent offense
designation was based on Defendant’s history with alcohol, his refusal to address the
problem, and his insistence on continuing to drive while drunk. 	The district court
further referred to evidence that other people had tried to prevent Defendant from
driving on the day of the accident. To summarize, Defendant had a long history of

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alcohol abuse, previous experience with injuring a person because of alcohol
impairment, and he disregarded advice to refrain from driving while under the
influence. We are satisfied that this evidence is sufficient to establish that Defendant
acted with recklessness in the face of knowledge that his acts were reasonably likely
to result in serious harm. 	See Wildgrube, 2003-NMCA-108, ¶ 38; Morales, 2002-
NMCA-016, ¶¶ 15, 16.
{30} 	We further hold that the evidence supported the district court’s finding that
Defendant used physical force and that actual harm resulted. 	See Morales, 2002-
NMCA-016, ¶ 18. Although we acknowledge that any vehicular homicide employs
some level of physical force, the district court made findings that are specific to the
force used in and the harm caused by this particular vehicular homicide: Defendant
drove recklessly while intoxicated, crossed the center line, and struck the victim on
a bicycle at such a rate of speed that she was thrown over the truck and into
Defendant’s truck bed. In addition, the district court considered the “resulting harm”
by accepting the statements of the victim’s family regarding the emotional impact of
the victim’s death. See id. ¶ 13 (“[R]esulting harm must be considered along with the
nature of the offense to determine if a listed offense qualifies.”). The district court did
not abuse its discretion by relying on these facts to establish that the Defendant acted
in a physically violent manner. See Wildgrube, 2003-NMCA-108, ¶ 38 (concluding

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that the evidence supported a serious violent offense designation when the defendant
recklessly drove while intoxicated, looked away from the road, and hit and killed a
pedestrian).
{31} 	Review of the record demonstrates that the facts supported the district court’s
findings and the designation of Defendant’s conduct as a serious violent offense.
III. 	CONCLUSION
{32} 	We affirm the district court.
{33} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

LINDA M. VANZI, Judge

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