July 18, 2011 – State of New Mexico v. Jeremy Cotton, No. 30,014

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	July 18, 2011
NO. 30,014
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JEREMY COTTON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Don Maddox, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION

CASTILLO, Chief Judge.
{1} 	Defendant was in the driver’s seat of a van parked on a roadside near Hobbs,
New Mexico. His girlfriend and her four young children were in the car with him.
Deputy Kelly had been called to the location to investigate a report of a possible
domestic incident occurring in the van. Suspecting that Defendant was intoxicated,
Deputy Brown questioned Defendant who admitted that he had consumed alcohol
recently. 	Defendant then failed field sobriety tests (FSTs), was arrested for DWI,
refused to submit to chemical testing, and was unwilling to cooperate when he was
placed in the police car after arrest. He was ultimately charged with and convicted of
aggravated DWI in violation of NMSA 1978, Section 66-8-102 (2008) (amended
2010); negligent child abuse not resulting in great bodily harm or death in violation
of NMSA 1978, Section 30-6-1 (2005) (amended 2009); and resisting, evading, or
obstructing an officer in violation of NMSA 1978, Section 30-22-1 (1981). 	On
appeal, Defendant’s primary challenge is to the sufficiency of the evidence underlying
the convictions. He argues that there was no evidence presented at trial to prove that
he actually drove while impaired or that he endangered the children’s lives. We agree,
and we reverse these convictions. His sufficiency arguments as to resisting arrest are
unpersuasive; the evidence shows Defendant vigorously resisted the deputies. We
reverse in part, affirm in part, and remand for resentencing on the sole count of

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resisting arrest.
DISCUSSION
{2} 	As a preliminary matter, Defendant, for the first time on appeal, contends that
the district court erred in failing to issue UJI 14-4511 NMRA that defines the term
“operating” in the DWI context. Because we conclude that the evidence is insufficient
to support the DWI conviction, we need not reach Defendant’s argument that UJI 14-
4511 was wrongly withheld. We first set out our standard of review, then turn our
attention to the DWI conviction, and finally examine the other convictions.
Standard of Review
{3} 	“The sufficiency of the evidence is assessed against the jury instructions
because they become the law of the case.” State v. Quiñones, 2011-NMCA-018, ¶ 38,
149 N.M. 294, 248 P.3d 336. 	The sufficiency review itself involves a two-step
process. 	State v. Huber, 2006-NMCA-087, ¶ 11, 140 N.M. 147, 140 P.3d 1096.
Initially, the evidence is viewed in the light most favorable to the verdict. 	Id. 	The
appellate court must make a legal determination of “whether the evidence viewed in
this manner could justify a finding by any rational trier of fact that each element of the
crime charged has been established beyond a reasonable doubt.” State v. Apodaca,
118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation
omitted). “[W]e will not reweigh the evidence nor substitute our judgment for that of

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the fact finder provided that there is sufficient evidence to support the verdict.” State
v. Fuentes, 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 P.3d 1181 (internal quotation
marks and citation omitted).
Aggravated DWI Conviction
{4} 	We begin with a summary of the evidence presented at Defendant’s trial
relative to the DWI count. In October 2008, the Lea County Sheriff’s Department
received a report of a possible domestic incident occurring in a van parked on a
roadside in Hobbs, New Mexico. Roughly five minutes after the report was received,
Deputy Brown arrived at the location where the van was parked. Deputy Sheriff Drew
Buescher also responded and arrived shortly after Deputy Brown.
{5} 	Defendant was seated in the driver’s seat of the van; Defendant’s girlfriend was
seated in the front passenger seat; and the four children, who were between the ages
of two and nine, were seated in the rear. The van was not running, and the keys were
not in the ignition. Deputy Brown detected the odor of alcohol emanating from the
van 	and 	suspected 	that 	both 	Defendant 	and 	his 	girlfriend 	were 	intoxicated.
Defendant’s girlfriend’s speech was slurred, and she was bleeding from her lip.
{6} 	Deputy Brown asked Defendant whether he had consumed any alcohol and
Defendant responded that he had consumed twenty-four ounces of beer about one
hour earlier. The deputy ordered Defendant out of the van and asked him to perform

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the standard FSTs. Defendant initially objected, stating that he was blind in one of his
eyes, but Defendant eventually acquiesced. He failed the tests and was arrested for
DWI and went to trial on these and other charges.
{7} 	The jury was instructed that the essential elements of aggravated DWI include
the following:
1. 	[D]efendant operated a motor vehicle;
2. 	At the 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;
3. 	[D]efendant refused to submit to chemical testing;
4. 	This happened in New Mexico, on or about the 7th day of
October, 2008.
Defendant asserts that the State failed to submit sufficient evidence to prove that he
operated a motor vehicle while impaired to the slightest degree and, alternatively,
failed to submit sufficient evidence of impairment. We begin with the first of these
two arguments.
{8} 	Relying on State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, and
State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269, Defendant claims
that the State failed to prove that he “intended to drive or that he had recently driven.”
Defendant’s argument must be divided into two parts: did he intend to drive in the
future or did he recently drive. As to the first scenario, the State did not try to prove

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that Defendant intended to drive—that he had actual physical control of the
vehicle—as a basis for the conviction. The State confirms and concedes this point on
appeal. 	The State’s sole theory at trial was that there was ample circumstantial
evidence that Defendant drove the van before he encountered Deputies Brown and
Buescher and that Defendant was impaired to the slightest degree at that time. Only
the Mailman case applies here. We explain.
{9} 	In Sims, our Supreme Court comprehensively reviewed the origins and
applicability of the actual physical control standard and set new parameters for its
applicability. 	Sims involved a driver who had lapsed into unconsciousness while
sitting behind the wheel of a parked vehicle. 2010-NMSC-027, ¶ 1. When the police
discovered the defendant in his vehicle, it was not running, and the keys were not in
the ignition. Id. The metropolitan court determined that the defendant had been in
actual physical control of the vehicle, so the defendant pled to one count of DWI but
reserved the right to appeal the metropolitan court’s determination. Id. ¶ 2.
{10} 	In reversing the metropolitan court, our Supreme Court turned a new page in
its DWI jurisprudence and concluded that the State must prove two elements to secure
a DWI conviction under the actual physical control standard: “(1) the defendant was
actually, not just potentially, exercising control over the vehicle, and (2) the defendant
had the general intent to drive so as to pose a real danger to himself, herself, or the

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public.” 	Id. ¶ 4. 	The Court expressly recognized the consequence of these new
requirements: “interpreting actual physical control to require proof of intent makes
it analytically similar to an attempt crime.” 	Id. ¶ 27. 	Applying this reformulated
standard to the facts in Sims, the Court determined that the State failed to meet its
burden. 	Id. ¶ 4. 	Sims directs that the actual physical control standard is applicable
only when the prosecution is premised on prospective or anticipated impaired driving.
{11} 	In Mailman, as in Sims, the defendant was seated in the driver’s seat of his
parked vehicle when he was approached by an officer. Mailman, 2010-NMSC-036,
¶ 2. The vehicle was not running, and the keys were not in the ignition. Id. ¶ 5. The
officer suspected that the defendant was intoxicated—there was an open beer can on
the center console, and he demonstrated physical signs of impairment. Id. ¶ 3. The
defendant confirmed the officer’s suspicions by admitting that he had consumed a six
pack of beer and had thrown the empty cans out of the window of his vehicle as he
drove from the location he had been earlier. Id. ¶ 4. The defendant refused to perform
field sobriety tests or take a breath test. Id. ¶ 5. As to the latter, he admitted that he
was too drunk to pass. Id.
{12} 	At trial, the state argued that the defendant was guilty of DWI based on either
of the following two theories: (1) the defendant was in actual physical control of the
vehicle while impaired; or (2) the defendant actually drove the vehicle while impaired.

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Id. ¶ 6. The jury returned a general verdict of guilty. Id.
{13} 	Citing the new requirements established in Sims, the Mailman Court observed
that there was insufficient evidence presented “to demonstrate that [the d]efendant had
taken an overt step toward driving with a general intent to drive so as to endanger
himself or the public” and held that the defendant could not have been convicted
under a theory of actual physical control. Id. ¶ 21. The Court clarified, however, that
this conclusion had no bearing on the viability of the past impaired driving theory of
conviction and held that “[a]ctual physical control is not necessary to prove DWI
unless there are no witnesses to the vehicle’s motion and insufficient circumstantial
evidence to infer that the accused actually drove while intoxicated.” 	Id. ¶¶ 26, 28
(emphasis omitted). The Court determined that the evidence supported a conviction
based on past impaired driving. Id. ¶¶ 23-24. The jury had returned a general verdict.
Id. ¶ 12. Because that verdict could have been reached by conviction based on actual
physical control—a theory that had not been proved at trial—the Court determined
that the general verdict could not stand. Id. The Court reversed the conviction and
remanded for a new trial solely on the issue of past impaired driving. Id. ¶¶ 12, 28-29.
{14} 	We now turn to the present case. At Defendant’s trial, the State’s exclusive
theory was that he drove the van before he encountered Deputies Brown and Buescher
and was impaired to the slightest degree at that time. 	This matter is analogous to

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Mailman; Sims is inapplicable here. 	Thus, we need not address Defendant’s
contention that the State failed to prove actual physical control and need not concern
ourselves with the parties’ discussion of Sims. We need only evaluate whether there
was sufficient evidence to prove the State’s theory that Defendant drove before the
deputies made contact with him and that he was impaired to the slightest degree at that
time. The State offered the following remarks during closing argument:
The vehicle is on the side of road. We can probably take for granted that
it wasn’t placed there by aliens. There’s no indication that the vehicle
is the home. In other words, that these people live out of this van. So,
if it is on the side of the road, it got there somehow. You can infer that
somebody drove it. 	You can also infer that the person sitting in the
driver’s seat was the one that brought it there. 	Those are called
reasonable inferences from the evidence.
As proof of Defendant’s impairment at the time he had driven, the State directed the
jury to the following facts: the odor of alcohol emanating from the van, Defendant’s
admission that he had consumed twenty-four ounces of beer one hour before he
encountered Deputy Brown, Defendant’s poor performance on the FSTs, Defendant’s
belligerent and unruly behavior, and his refusal to undergo breath or blood testing.
This evidence supports the conclusion that Defendant was impaired during the time
of contact with the deputies. The mere fact that Defendant’s van was observed at a
roadside location with Defendant sitting in it in a state of intoxication, without more,
does not prove Defendant drove while impaired in violation of Section 66-8-102.

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Indeed, there was no evidence presented to prove that the driving and impairment
overlapped. 	No one testified about seeing Defendant driving while impaired.
Although Defendant admitted he consumed alcohol one hour before speaking to
Deputy Brown, there was no evidence regarding when Defendant parked the van.
Defendant could have parked and then consumed the beer. The State, therefore, failed
to establish that Defendant drove after he had consumed alcohol and after alcohol had
impaired his ability to drive to the slightest degree. The State’s inability to supply this
needed evidence is determinative. Although the jury could infer that Defendant drove
to the location where he was arrested, the jury could not infer that Defendant drove
while impaired. Based on the evidence presented, any connection drawn between the
drinking and driving had to result from impermissible speculation. See State v. Vigil,
2010-NMSC-003, ¶ 20, 147 N.M. 537, 226 P.3d 636 (“For the jury to have reached
[the conclusions necessary to the verdict, it] had to speculate. This it may not do.”
(alteration in original) (internal quotation marks and citation omitted)).
{15} 	We hold that there was insufficient evidence presented to prove Defendant
operated a motor vehicle while impaired to the slightest degree. As such, we conclude
that Defendant’s aggravated DWI conviction must be reversed. 	In light of this
conclusion, we need not consider Defendant’s alternative argument that the State
failed to present sufficient evidence of impairment or his contention that the district

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court committed fundamental error in failing to issue UJI 14-4511. We turn to the
next issue.
Child Abuse Conviction
{16} 	Defendant next argues that the State failed to present sufficient evidence to
support the child abuse conviction. 	The evidence on this charge is essentially the
same as the evidence presented in relation to the DWI count. The jury was instructed
that in order to convict Defendant of child abuse in violation of Section 30-6-1, the
State had to prove the following:
1. 	[Defendant] permitted four small children to be placed in a
situation which endangered the life or health of the four
children;
2. 	[D]efendant acted with reckless disregard. 	To find that
[Defendant] acted with reckless disregard, you must find
that [Defendant] knew or should have known [that his]
conduct 	created 	a 	substantial 	and 	foreseeable 	risk,
[D]efendant disregarded that risk and [D]efendant was
wholly indifferent to the consequences of the conduct and
to the welfare and safety of the four children;
3. 	[Defendant] was a parent, guardian or custodian of the
children, or [D]efendant had accepted responsibility for the
children’s welfare;
4. 	The four children were under the age of 18;
5. 	This happened in New Mexico on or about the 7th day of
October, 2008.
At trial, the State argued during closing that elements one and two were established
by evidence that both Defendant and his girlfriend were impaired and incapable of
driving and, yet, had the children in the car with them. The State did not rely on the

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children’s proximity to the violence apparently inflicted on the mother by Defendant
as evidenced by her bleeding lip. 	Nor did the State rely, as it did with the DWI
charge, on evidence of past driving. 	Even if it had, we have held that there was
insufficient evidence to prove that Defendant was DWI based on past driving. As to
DWI based on actual 	physical control under Sims, 2010-NMSC-027, the State
concedes that this theory was not raised at trial and is not “sufficiently at issue.”
Instead, the State’s case on the child abuse count was premised on the theory that
hypothetical conduct, i.e., the possibility that Defendant might drive, placed the
children in a situation which endangered their lives and health. 	We evaluate the
State’s position in light of State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d
891, a recent decision from our Supreme Court clarifying the applicability of Section
30-6-1.
{17} 	Chavez recognized that in cases of child abuse, remedies range from civil
intervention by CYFD to criminal sanctions. 	2009-NMSC-035, ¶¶ 12-15. 	“Child
abuse by endangerment . . . is a special classification designed to address situations
where an accused’s conduct exposes a child to a significant risk of harm, even though
the child does not suffer a physical injury.” 	Id. ¶ 15 (internal quotation marks and
citation omitted). The Chavez Court rejected a literal interpretation of the statute to
permit any conduct that “may endanger [a] child’s life or heath.” Id. ¶ 16 (alteration

12
in original) (internal quotation marks and citation omitted). Rather, it understood the
Legislature to reserve criminal prosecution of this third-degree felony for “the most
serious occurrences, and not for minor or theoretical dangers.” Id. (emphasis added).
The Court went on to parse out what differentiated a “serious occurrence” from a
“minor or theoretical danger.” Looking to language derived from the uniform jury
instruction for Section 30-6-1, the Court focused on the portion of the instruction
directing the jury to “find that ‘defendant’s conduct created a substantial and
foreseeable risk’ of harm.” 	Chavez, 2009-NMSC-035, ¶ 22 (quoting UJI 14-604
NMRA). The Court explained that this standard—whether the defendant’s conduct
created a substantial and foreseeable risk of harm—“more closely aligns with the
legislative purpose that animates the child endangerment statute—to punish conduct
that creates a truly significant risk of serious harm to children.” Id.
{18} 	In this case, the State did not rely on Defendant’s actual conduct, but rather on
the possibility of his future conduct—conduct that did not occur because the police
intervened. The State points to State v. Graham, 2005-NMSC-004, ¶ 10, 137 N.M.
197, 109 P.3d 285, a case in which the Court determined that there was sufficient
circumstantial evidence to support an inference that the defendant had left marijuana
in the living room and a marijuana bud in the baby crib, both of which were accessible
to the children. The State likens the reasonable possibility that the children would

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come in contact with the marijuana to the reasonable possibility that Defendant would
drive off thus exposing the children to the dangers of being in a car with an impaired
driver. We see a difference.
{19} 	In Graham, the defendant acted; he left the marijuana available to the children,
and marijuana is a dangerous substance as evidenced by its inclusion as a Schedule
I controlled substance. See NMSA 1978, § 30-31-6 (C)(10) (2007); Graham, 2005-
NMSC-004, ¶¶ 10, 12. 	In the case before us, Defendant had not yet acted. 	Any
possibility of harm to the children would have to be based on Defendant’s driving of
the vehicle. 	At some point, Defendant might drive the vehicle, but there was no
evidence about when or if this was going to occur. He might have decided to wait
until the effects of the alcohol in his system had dissipated. Or, as happened in this
case, he was arrested, and there was no opportunity to drive away.
{20} 	The other cases relied on by the State also involved acts by Defendant. State
v. McGruder, 1997-NMSC-023, ¶ 38, 123 N.M. 302, 940 P.2d 150 (upholding child
abuse conviction based on the defendant’s threat to kill the child’s mother with a gun
when the child was standing behind her), abrogated on other grounds by Chavez,
2009-NMSC-035; State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App.
1993) (basing child abuse charge on the defendant’s brandishing a knife at the father
with the child so close that the child felt he was in danger), abrogated on other

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grounds by Chavez, 2009-NMSC-035. These cases are distinguishable because, in
both cases, there was evidence that the defendant took action and that the action
endangered a child.
{21} 	The facts presented at trial were as follows: 	Defendant was sitting in the
driver’s seat of a van parked by the side of the road, he exhibited signs of impairment,
the other adult passenger in the van was impaired, there were no keys in the ignition,
four children were seated in the back of the van, he was arrested and never drove the
van away. 	The State’s theory is that the danger posed by the possibility that
Defendant might drive while impaired exposed the children to a substantial and
foreseeable risk of harm. While we agree that driving impaired with children in the
car could cause grave harm depending on the circumstances, the possibility that
Defendant might drive is a theoretical danger—the exact type of danger our
Legislature did not intend to bring within the ambit of Section 30-6-1.
{22} 	We conclude that the theoretical danger to the children posed by the possibility
of Defendant’s impaired driving was insufficient to support Defendant’s child abuse
conviction. 	We do not mean to minimize the problem of drunken driving or the
possibility of danger to the children had Defendant actually driven. 	We cannot,
however, conclude that the State met its evidentiary burden in this case. We proceed
to the last issue on appeal.

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Conviction for Resisting Arrest
{23} 	Finally, Defendant contends, pursuant to State v. Franklin, 78 N.M. 127, 129,
428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-59, 712 P.2d 1, 4-6
(Ct. App. 1985), that there was insufficient evidence presented that he resisted arrest.
At trial, there was evidence that after Defendant was arrested, Deputies Brown and
Buescher then together attempted to place him in one of their vehicles. Defendant
argued with the deputies and was unwilling to cooperate. 	He was eventually
persuaded to enter the vehicle, but would not put his legs inside which prevented the
officers from closing the door. Deputy Brown attempted to force Defendant’s legs
inside by pulling him into the vehicle, but Defendant then placed his head in a position
which prevented the door from being closed. 	Defendant then purposely moved in
such a way that he fell out of the vehicle. He was arguing and screaming while lying
face down on the ground. When the deputies attempted to pick him up, he kicked
Deputy Buescher. The deputies then attempted to apply leg restraints, at which time
Defendant kicked Deputy Buescher again. A third deputy was ultimately needed to
secure Defendant in the vehicle. After that was accomplished, Deputy Brown drove
Defendant to a detention center.
{24} 	The jury was instructed that the essential elements of resisting, evading, or
obstructing an officer in violation of Section 30-22-1 include the following:

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1. 	[Deputy] Brown was a peace officer in the lawful discharge
of duty;
2. 	[D]efendant resisted or abused [Deputy] Brown in the
lawful discharge of [his] duties;
3. 	This happened in New Mexico, on or about the 7th day of
October, 2008.
Defendant takes issue only with the evidence relating to element two. His arguments
appear to be that the evidence at trial was wrongly construed. He claims that he was
not resisting arrest but merely attempting to speak with his girlfriend and that the
officers overreacted and handled him roughly. Defendant’s arguments are unavailing;
he is asking us to reweigh the evidence. This we cannot do. Fuentes, 2010-NMCA-
027, ¶ 13. 	There was ample evidence to demonstrate that Defendant resisted or
abused Deputy Brown.
CONCLUSION
{25} 	We hold that the State failed to present sufficient evidence to sustain the
aggravated DWI and the child abuse convictions. The Double Jeopardy Clause bars
retrial on these matters, State v. Sanchez, 2000-NMSC-021, ¶ 30, 129 N.M. 284, 6
P.3d 486, so these charges are dismissed. However, we hold that the resisting arrest
conviction is supported by sufficient evidence, and we remand this matter to the
district court with instructions to resentence Defendant on that sole conviction.
{26} 	IT IS SO ORDERED.

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__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
__________________________________
JAMES J. WECHSLER, Judge
__________________________________
RODERICK T. KENNEDY, Judge