A-1-CA-37437 | Omnilex

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
2| STATE OF NEW MEXICO Filed 4/21/2020 11:06 AM
3 Plaintiff-A ppellee,
All v. No. A-1-CA-37437
5| MEGAN ANKER-UNNEVER,
6 Defendant-Appellant
Detendant-Appelant.
7| APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

RA T NAGY] fel Dit 4eetnt Tel
Wlary L. Wlallowc-SOmmmer, DISTTICL JUGLC

9! Hector H. Balderas, Attorney General
10} Santa Fe, NM
11] Lauren J. Wolongevicz, Assistant Attorney General
12] Albuquerque, NM
13] for Appellee
14] Jason M. Alarid
5 Albuquerque, NM
16] for Appellant
17 MEMORANDUM OPINION
18] MEDINA, Judge.
19] 43 Defendant Megan Anker-Unnever appeals from her conviction of driving
20] while under the influence of drugs (DWI), in violation of NMSA 1978, Section 66-
21] 8-102(B) (2016). Defendant raises two issues on appeal: (1) there was insufficient

evidence to support her conviction, and (2) the officer lacked probable cause to arrest

her. We affirm

BACKGROUND

23 The following facts are derived from Officer Trace Evridge’s testimony given

at _Defendant’s trial. Officer Evridge was monitoring traffic when he pulled

Defendant over for driving 43 mph ina 35 mph zone. As he approached Defendant’s

vehicle, the officer noticed an odor of marijuana coming from inside Defendant’s

vehicle. Defendant’s driver-side window was open and the odor of marijuana

became stronger as Officer Evridge got closer. Defendant admitted to Officer

Evridge that she was not paying attention to her speed because she was looking at

her phone. Defendant initially denied drinking any alcohol or using drugs. At the

request of Officer Evridge, Defendant then stepped out of her vehicle. While

Defendant stood outside of her vehicle and spoke with Officer Evridge, he noticed

an odor of alcohol emanating from her breath.

{33 Based on the odors of alcohol and marijuana, Officer Evridge asked

Defendant to perform standardized field sobriety tests (SFSTs), which consisted of

a horizontal gaze nystagmus (HGN) test, a walk-and-turn test, and a one-leg-stand

test. Following the administration of the SFSTs, Defendant agreed to take a portable

breath test (PBT).' Before Defendant took the PBT, Officer Evridge again asked

Defendant if she had had_anything to drink. Defendant admitted she had “a few sips”

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of wine, had smoked marijuana and was “stoned.” Officer Evridge then asked, “On

a scale from 1 to 10, how high are you?” to which Defendant responded, “Like a

two.” Based on Defendant’s speeding, her performance on the SFSTs, and_her

admissions to not paying attention while driving, being “stoned,” and drinking prior

to driving, Officer Evridge believed Defendant was impaired at least “to the slightest

degree” and not able to safely operate a motor vehicle. Consequently, he arrested

Defendant for DWI.

4 The State charged Defendant in the magistrate court with, among other things,

DWI, in violation of Section 66-8-102(A) (prohibiting persons from operating a

motor vehicle while “under the influence of intoxicating liquor’) or, in the

alternative, Section 66-8-102(B) (prohibiting persons from operating a motor vehicle

while “under the influence of any drug to a degree that renders the person incapable

of safely driving a vehicle”). Following her trial and conviction in magistrate court,

Defendant appealed de novo to the district court. Defendant moved to suppress the

evidence obtained after the traffic stop for lack of probable cause. The district court

denied Defendant’s motion following a suppression hearing. After a bench trial, the

' The results of the PBT were not admitted at trial. Defendant also took a blood
test following her arrest, the results of which were suppressed by stipulation of the

parties.

district court found Defendant guilty of DWI, contrary to Section 66-8-102(B). This

DISCUSSION

65} Defendant challenges (1) the district court’s denial of her motion to suppress

for lack of probable cause and (2) the sufficiency of the evidence supporting her

conviction. Because the latter argument is determinative of the former in this case,

we begin with Defendant’s sufficiency argument.

I. Substantial Evidence Supported Defendant’s Conviction

{6} “The test for sufficiency of the evidence is whether substantial evidence of

either a direct or circumstantial nature exists to support a verdict of guilty beyond a

reasonable doubt with respect to every element essential to a conviction.” State v.

Montoya, 2015-NMSC-010, 952, 345 P.3d 1056 (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 disregard all evidence and inferences that support a

different result. See State v. Rojo, 1999-NMSC-001, J 19, 126 N.M. 438, 971 P.2d

829.

+ DAP

{i To convict Defendant of DWI under Section 66-8-102(B), the State had to

prove beyond a reasonable doubt that (1) Defendant operated a motor vehicle, (2)

while she “was under the influence of drugs to such a degree that [she] was incapable

4502 NMRA.’ The only element at issue here is whether Defendant was under the

influence of drugs to a degree that rendered her incapable of safely driving a vehicle.

We conclude that substantial evidence supported this element

{83 | When Officer Evridge made contact with Defendant, he noticed an odor of

marijuana emanating from her vehicle. Further, Defendant admitted to smoking

marijuana and being “stoned.” Although Defendant qualified this statement by

saying she was “like a two” in terms of how high she was, Defendant’s admission,

coupled with the odor of marijuana, give rise to a reasonable inference that

Defendant was under the influence of marijuana when she was driving.

* Defendant appears to contend the district court erroneously relied on the
standard for a DWI conviction under Section 66-8-102(A), which depends on
whether the driver “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 driver and the public as a result of drinking .. .
liquor.” State v. Gurule, 2011-NMCA-042, § 7, 149 N.M. 599, 252 P.3d 823

(internal quotation marks and citation omitted). Although Defendant accurately
points out that the State was confused about the standards for DWI convictions under
Section 66-8-102(A) and Section 66-8-102(B) , the district court’s written judgment

adjudicating Defendant guilty recites the standard for conviction under Section 66-
8-102(B). Without any evidence that the district court relied on the wrong standard,
we presume the district court correctly relied on the standard for conviction under

Section 66-8-102(B). See State v. Aragon, 1999-NMCA-060, § 10, 127 N.M. 393,
981 P.2d 1211 (stating that there is a presumption of correctness in the rulings or
decisions of the district court, and the party claiming error bears the burden of

showing such error).

(93 The evidence also supports the district court’s conclusion that Defendant was

under the influence of marijuana to such a degree to render h

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driving a vehicle. Officer Evridge pulled Defendant over for speeding 43 mph ina

35 mph zone. Defendant admitted she was not paying attention to the speed of her

vehicle because she was looking at her phone. Defendant’s speeding—caused by

allowing herself to be distracted by looking at her phone—lends support to the

conclusion that Defendant was incapable of safely driving. Cf State v. Wildgrube,

2003-NMCA-108, 97, 134 N.M. 262, 75 P.3d 862 (holding that there was

substantial evidence that the defendant operated his vehicle in a reckless manner

when he struck the victim after continuing to drive at 45 mph while looking away

from the road to find his cell phone).

(103 Officer Evridge’s observations of Defendant during the SFSTs provides

further support for this conclusion. Officer Evridge testified that some of the SFSTs,

including the walk-and-turn test, relate to a person’s ability to drive because the tests

are used to evaluate a person’s ability to multi-task, which drivers must do by

monitoring speed and looking for other traffic. To this end, Officer Evridge observed

Defendant sway during the HGN test; “‘miss[] heel to toe,” step out of line, make an

improper turn, and raise her arms parallel to the floor during the walk-and-turn test,

contrary to instructions; and sway, raise her arms to balance herself, put her foot

down, and hop to maintain balance during the one-leg-stand test. Given Defendant’s

speeding, motor skills, failure to follow instructions during the SFSTs, and

evidence supported Defendant’s conviction for DWI. Cf State v. Neal, 2008-

NMCA-008, § 27, 143 N.M. 341, 176 P.3d 330 (recognizing that the fact-finder

could rely on common knowledge and experience to determine whether the

defendant was under the influence of alcohol when considering the testimony as to

the defendant’s driving behavior, physical condition, admission to drinking, and

performance on SFSTs).

4113, Defendant makes several arguments against such a conclusion, which we

address in turn. First, Defendant argues that her performance on the SFSTs should

not be considered in determining whether she was capable of safely operating her

vehicle because the tests were designed only to measure blood alcohol content

(BAC) and not impairment. In support of this argument, Defendant cites State v.

Lasworth, 2002-NMCA-029, § 14, 131 N.M. 739, 42 P.3d 844, in which we

observed that the creators of the SFSTs “pursued the development of tests that would

provide statistically valid and reliable indications of a driver’s BAC, rather than

indications of driving impairment.” (emphasis omitted).

4123 Defendant’s reliance on Lasworth is misplaced, as that case dealt solely with

Se ee

case, we quoted a report that noted,

1 Many individuals, including some judges, believe that the purpose of a
2 field sobriety test is to measure driving impairment. For this reason,
3 they tend to expect tests to possess “face validity,” that is, tests that
4 appear to be related to actual driving tasks. . . . [HGN] lacks face
5 validity because it does not appear to be linked to the requirements of
6 driving a motor vehicle

7| [d. § 14 (internal quotation marks and citation omitted).

The report also noted that “[t]ests of physical and cognitive abilities, such as balance,

reaction time, and information processing, have face validity, to varying degrees,

based on the involvement of these abilities in driving tasks; that is, the tests seem to

be relevant on the face of it.” /d. (internal quotation marks and citation omitted); see

also State v. Torres, 1999-NMSC-010, 931, 127 N.M. 20, 976 P.2d 20 (“[W)hile

most of the field sobriety tests are self-explanatory, HGN is not. When courts have

taken judicial notice of the common physical manifestations of intoxication, [HGN]

is not included.” (internal quotation marks and citation omitted)).

43} Unlike Lasworth, the evidence in this case does not come from the results of

Defendant’s HGN test but rather Officer Evridge’s observations of Defendant during

the SFSTs. Although circumstantial, the district court properly relied on Officer

Evridge’s observations of Defendant’s motor skills, inability to follow instructions

during the Sk SIs, coupled with Defendant's speeding and admissions to consuming

alcohol and being stoned, to determine Defendant was incapable of safely operating

her vehicle. See Torres, 1999-NMSC-010, 431 (stating that “most of the field

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sobriety tests are self-explanatory” (internal quotation marks and citation omitted);

State v. Randy J., 2011-NMCA-105, 4 34, 150 N.M. 683, 265 P.3d 734 (considering

SFSTs in anal e evidence because “[a|dministration of field

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sobriety tests is a reasonable part of an investigation where the officer has reasonable

suspicion that the person was driving under the influence of alcohol or drugs”

(emphasis added)); State _v. Soto, 2007-NMCA-077, 11, 142 N.M. 32, 162 P.3d

187 (“Evidence of a direct or circumstantial nature is sufficient if a reasonable mind

might accept the evidence as adequate to support a conclusion.” (alteration, internal

quotation marks, and citation omitted)) overruled on other grounds by State v.

Tollardo, 2012-NMSC-008, 142 N.M. 32, 275 P.3d 110.

414} Next, Defendant claims the district court impermissibly relied on Defendant’s

admission that she was “stoned” without any independent evidence to establish the

corpus delicti of her DWI offense. See State v. Weisser, 2007-NMCA-015, § 10, 141

N.M. 93, 150 P.3d 1043 (“The corpus delicti rule provides that unless the corpus

delicti of the offense charged has been otherwise established, a conviction cannot be

sustained so/e/y on the extrajudicial confessions or admissions of the accused.”

(alteration, internal quotation marks, and citation omitted)), abrogated in part on

other grounds by State v. Bregar, 2017-NMCA-028, § 49, 390 P.3d 212. Contrary

to Defendant’s assertion, Defendant’s statements were not the only evidence to

establish the corpus deliciti, as the State introduced evidence of an odor of marijuana

coming from Defendant’s vehicle, Defendant’s speeding, and Officer Evridge’s

observations of Defendant during the SFSTs. Thus, Defendant’s corpus delicti

5} Defendant also relies on State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194

P.3d 110, to argue that Officer Evridge’s failure to conduct a complete drug

recognition expert (DRE) investigation renders the evidence insufficient to support

her conviction. Defendant’s reliance is unavailing. Although we observed in Aleman

that evidence of DRE protocol results is helpful to a fact-finder in correlating specific

observations of a defendant to the influence of a particular drug, see id. § 19, we did

not hold that its use is required in every case. As discussed earlier, we conclude the

evidence in this case was sufficient, despite the lack of a DRE investigation.

416} Defendant additionally contends the State’s failure to introduce a toxicology

report or expert testimony “on the effects of marijuana on a person and how a given

level would render a driver incapable of safely operating a vehicle[]” makes the

evidence insufficient to support her conviction. In support of this contention,

Defendant relies on State v. Aman, 95 P.3d 244 (Or. Ct. App. 2004). However, Aman

involved the admissibility of the results of a DRE protocol as scientific evidence

without a corroborating toxicology report, see id. at 249, evidence not used in this

case. Furthermore, as this Court has observed, “That there was no scientific proof

... to measure the level or degree of influence of alcohol[ or drugs] does not mean

that there was a conviction on less than sufficient evidence to prove guilt beyond a

reasonable doubt.” Neal, 2008-NMCA-008, § 27. Without any other authority for

a HAG A = e St.

the proposition that the State needed to introduce_a toxicology report_or_expert

testimony linking the effects of marijuana to Defendant’s ability to safely operate a

vehicle, we decline to address this argument further. See State v. Ponce, 2004-

NMCA-137, 4.36, 136 N.M. 614, 103 P.3d 54 (declining to address argument

unsupported by citation to authorities).

17; Lastly, to the extent Defendant contends that the evidence was insufficient

because Officer Evridge did not witness Defendant commit any other driving

infractions, other than speeding, or exhibit any signs of impairment outside of

Defendant’s admissions and performance on the SFSTs, we disagree. While the

absence of other indicia of impairment and unsafe driving could support a conclusion

that Defendant was not “under the influence of drugs to such a degree that [she] was

incapable of safely driving a vehicle[,|’” UJI 14-4502, “[t]he question for us on

appeal is whether the district court’s decision is supported by substantial evidence,

not whether the [district] court could have reached a different conclusion. We

emphasize that we do not consider the merit of evidence that may have supported a

different result.” State v. Schaaf, 2013-NMCA-082, ¢ 11, 308 P.3d 160 (alteration,

internal quotation marks, and citations omitted).

II. Probable Cause Supported Defendant’s Arrest

41s; Defendant largely repeats the same arguments in regard to whether Officer

Evridge had probable cause to arrest her for DWI. For the following reasons, we

disagree.

4193 Our Supreme Court has held that our appellate courts may consider evidence

presented at trial in reviewing the grant or denial of a motion to suppress. See State

v. Martinez, 1980-NMSC-066, ff 8, 15-16, 94 N.M. 436, 612 P.2d 228 (rejecting

the defendant’s argument that our Supreme Court may only consider the evidence

presented at suppression hearing in determining whether the defendant’s arrest was

supported by probable cause; stating that “the limited scope of review . . . should be

broadened so that the appellate court may determine if probable cause did or did not

exist by an examination of all the record surrounding an arrest or search and seizure”;

and considering a witness’s trial testimony in affirming denial of motion to

suppress); see also State v. Soto, 2001-NMCA-098, { 8, 131 N.M. 299, 35 P.3d 304

(considering the defendant’s trial testimony in determining that the district court’s

finding made at a suppression hearing was not supported by substantial evidence);

State v. Johnson, 1996-NMCA-117, 9§ 20-21, 122 N.M. 713, 930 P.2d 1165

(considering physical evidence presented at trial in affirming denial of motion to

suppress). The reason for this broadened scope of review is that “if we hide from a

part of the relevant truth in the appellate decision making process, we hide from the

litigants and the world a part of the truth and are proscribed from administering a

full measure_of justice.” Martinez, 1980-NMSC-066, 4 18. Thus, in determining

NAVE > TT

whether there was sufficient evidence to support the district court’s denial of

Defendant’s motion to suppress, we may consider evidence presented at trial.

20; Given this, and given our conclusion that substantial evidence supported

Defendant’s conviction for DWI based solely on Officer Evridge’s observations

prior to arresting Defendant, it necessarily follows that sufficient evidence supported

the district court’s conclusion that probable cause supported the arrest. See State v.

Morales, 2008-NMCA-102, 9 11, 144 N.M. 537, 189 P.3d 670 (“An officer has

probable cause to arrest when the facts and circumstances within the officer’s

knowledge are sufficient to warrant the officer to believe that an offense has been or

is being committed.” (internal quotation marks and citation omitted)); State v. Maes,

2003-NMCA-054, 497, 133 N.M. 536, 65 P.3d 584 (“The materiality and quantum

of evidence to show probable cause is far less than is necessary at trial to prove a

defendant’s guilt beyond a reasonable doubt.” (omission, internal quotation marks,

and citation omitted)). Accordingly, we affirm the district court’s denial of

Defendant’s motion to dismiss.

CONCLUSION

Qi; For the foregoing reasons, we affirm

a2. = IT IS SO ORDERED.

-
1
2
Jacqueline R. Medina JACQUELINE R. MEDINA, Judge
3 4 5 6
WE CONCUR:
LINDA M. VANZI, Judge
7|
Brata Princia
BRIANA H. ZAMORA, Judge
14

April 21, 2020- State of New Mexico v. Megan Anker-Unnever, No. A-1-CA-37437

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