April 13, 2020- State of New Mexico v. Oliver Valdez, No. A-1-CA-37643

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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-37643	4
OLIVER VALDEZ,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
John A. Dean, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
C. David Henderson, Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
VARGAS, Judge.	18
{1} 	Defendant appeals his convictions following a jury trial for aggravated driving	19
under the influence of intoxicating liquors and/or drugs (DUI), pursuant to NMSA	20
1978, Section 66-8-102(D)(3) (2016), and child abuse not resulting in death or great	21
bodily harm (reckless child endangerment), pursuant to NMSA 1978, Section 30-6-	22
Court of Appeals of New Mexico
Filed 4/13/2020 10:35 AM

2
1(D)(1) 	(2009), 	raising 	three 	issues 	for 	our 	consideration. 	First, 	Defendant	1
challenges the sufficiency of the evidence to support his conviction for DUI,	2
claiming that the State failed to present sufficient evidence of his intent to drive.	3
Second, Defendant argues the State failed to present sufficient evidence to support	4
his reckless child endangerment conviction because it did not present evidence that	5
Defendant exposed his son to an inherently dangerous situation, as opposed to a	6
hypothetical 	risk 	of 	harm. 	Third, 	Defendant 	contends 	the 	State 	committed	7
prosecutorial misconduct during closing argument when the prosecutor argued that	8
Defendant controlled the steering of the car and commented that Defendant refused	9
to take a breath test. Finding no error, we affirm.	10
BACKGROUND	11
{2} 	At trial, Defendant’s then-ten-year-old son (Child) testified that when he was	12
nine years old, while he was riding with Defendant in his vehicle in Shiprock, New	13
Mexico, Defendant pulled the vehicle over, shifted to the passenger seat and	14
instructed Child to drive to Child’s mother’s apartment complex in Farmington, New	15
Mexico. 	Child 	complied. 	During 	the 	drive, 	Defendant 	slept. 	Child 	testified	16
Defendant had consumed alcohol that day and there was alcohol in the vehicle.	17
{3} 	New Mexico State Police Officer Brandon Murphy (Officer Murphy) testified	18
he was dispatched to the Northgate Apartments in Farmington in response to a report	19
of a man passed out in a car. Officer Murphy observed Defendant’s vehicle parked	20

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near the apartment complex. Officer Murphy pulled behind the parked vehicle,	1
exited his patrol car, and approached the vehicle. As he approached, the vehicle	2
began moving. Officer Murphy got into his patrol car, activated his emergency	3
equipment, and pursued the vehicle. The vehicle turned into the apartment complex.	4
{4} 	Child testified that upon seeing Officer Murphy approaching the vehicle, he	5
woke Defendant up. Defendant then put the car in drive, pushed Child’s leg down to	6
press on the gas, and grabbed Child’s arm to assist him in turning the steering wheel	7
to the right.	8
{5} 	Officer Murphy testified that as the vehicle stopped, Defendant exited the	9
vehicle from the passenger side, and Officer Murphy found Child sitting in the back	10
seat with his seatbelt on. Officer Murphy and Child agree that Defendant admitted	11
he was the driver of the vehicle, though Defendant later denied driving the vehicle.	12
Officer Murphy further testified that he observed Defendant had bloodshot, watery	13
eyes, and a strong odor of alcohol emitting from his person. Officer Murphy arrested	14
Defendant.	15
DISCUSSION	16
The DUI Charge	17
{6} 	On appeal, Defendant argues that the evidence supporting his conviction for	18
DUI is insufficient. “In reviewing for sufficiency of the evidence, we must determine	19
whether substantial evidence of either a direct or circumstantial nature exists to	20

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support a verdict of guilt beyond a reasonable doubt with respect to every element	1
essential to a conviction.” State v. Torres, 2018-NMSC-013, ¶ 42, 413 P.3d 467	2
(internal quotation marks and citations omitted). “Substantial evidence is relevant	3
evidence that a reasonable mind might accept as adequate to support a conclusion.”	4
State v. Comitz, 2019-NMSC-011, ¶ 16, 443 P.3d 1130 (internal quotation marks	5
and citation omitted). Under the sufficiency of the evidence standard, evidence is	6
viewed “in the light most favorable to the guilty verdict, . . . resolving all conflicts	7
in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009,	8
¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that	9
support a different result. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971	10
P.2d 829. When reviewing for sufficiency of the evidence, “[t]he jury instructions	11
become the law of the case against which the sufficiency of the evidence is to be	12
measured.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (alteration, internal	13
quotation marks, and citation omitted).	14
{7} 	The jury was instructed that to find Defendant guilty of DUI, the State was	15
required to prove, beyond a reasonable doubt, that:	16
1. 	[D]efendant operated a motor vehicle; and,	17
2. 	At the time, [D]efendant was under the influence of intoxicating	18
liquor, that is, as a result of drinking liquor [D]efendant was less	19
able to the slightest degree, either mentally or physically, or both,	20
to exercise the clear judgment and steady hand necessary to	21
handle a vehicle with safety to the person and the public;	22

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3. 	This happened in New Mexico, on or about the 25th day of	1
March, 2017.	2
See UJI 14-4501 NMRA. Further, the jury was advised that, “A person is ‘operating’	3
a motor vehicle if the person is [] driving the motor vehicle; or, in actual physical	4
control with the intent to drive the vehicle, whether or not the vehicle is moving.”	5
See UJI 14-4511 NMRA.	6
{8} 	Here, Defendant’s challenge to the sufficiency of the evidence for his DUI	7
conviction is limited to his claim that the State failed to establish he “intended to	8
drive.” To convict Defendant of DUI, “the fact finder must assess the totality of the	9
circumstances and find that (1) the defendant was actually, not just potentially,	10
exercising control of the vehicle, and (2) the defendant had the general intent to drive	11
so as to pose a real danger to himself, herself, or the public.” State v. Sims, 2010-	12
NMSC-027, ¶ 4, 148 N.M. 330, 236 P.3d 642. To determine whether an individual	13
was in actual physical control of the vehicle and had a general intent to drive so as	14
to pose a real danger to himself or the public, our Supreme Court has adopted a non-	15
exhaustive list of factors to consider: (1) whether the vehicle was running; (2)	16
whether the ignition was turned on; (3) where the key was located; (4) where and in	17
what position the driver was in the vehicle; (5) whether or not the person was awake;	18
(6) whether the vehicle’s headlights were on; (7) whether the vehicle was stopped;	19
(8) whether the driver had voluntarily pulled off the road; (9) time of day; (10)	20
weather conditions; (11) whether the heater or air conditioner was on; (12) whether	21

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the windows were up or down; and (13) any explanation of the circumstances	1
demonstrated by the evidence. Id. ¶ 33; see also UJI 14-4512 NMRA (listing	2
substantially similar factors).	3
{9} 	Although one of these factors weighs in favor of Defendant’s claim that the	4
State presented insufficient evidence of his intent to drive—“where and what	5
position the driver was in the vehicle”—several of the others weigh against him.	6
Furthermore, the “explanation of the circumstances” demonstrated by Child’s	7
testimony, Sims, 2010-NMSC-027, ¶ 33, make clear that Defendant was “operating”	8
the vehicle by exercising “actual physical control with the intent to drive the	9
vehicle,” UJI 14-4511, when Defendant shifted the vehicle into drive, put his hand	10
on Child’s leg to press the gas pedal, and manipulated Child’s hand to turn the	11
steering wheel, regardless of where Defendant was sitting at the time. Therefore, we	12
conclude the totality of the circumstances demonstrate that Defendant had the	13
general intent to drive and affirm his conviction for DUI.	14
Reckless Child Endangerment	15
{10} 	Defendant next contends that the evidence supporting his conviction for	16
reckless child endangerment is insufficient. Defendant claims the evidence was	17
lacking because Child was exposed to a hypothetical danger as opposed to real	18
danger, as required by Section 30-6-1(D)(1). As with Defendant’s DUI conviction,	19
we review the jury’s verdict for sufficiency of the evidence, viewing the evidence	20

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“in the light most favorable to the guilty verdict, . . . resolving all conflicts in the	1
evidence in favor of the verdict.” Cunningham, 2000-NMSC-009, ¶ 26.	2
{11} 	With respect to the reckless child endangerment charge, the instruction	3
tendered to the jury required the State to prove, in relevant part, that Defendant	4
“caused a substantial and unjustifiable risk of serious harm to the safety or health of	5
[Child]. A substantial and unjustifiable risk is one that any law-abiding person would	6
recognize under similar circumstances that would cause any law-abiding person to	7
behave differently.” See UJI 14-612 NMRA (setting out elements of reckless child	8
endangerment); State v. Schaaf, 2013-NMCA-082, ¶ 8, 308 P.3d 160 (recognizing	9
that “our Supreme Court has declared that the defendant’s conduct must create a	10
substantial and foreseeable risk of harm” (emphasis, internal quotation marks, and	11
citation omitted)).	12
{12} 	Our Supreme Court has identified four factors to consider when evaluating	13
“whether the risk created by an accused’s conduct is substantial and foreseeable”:	14
(1) the gravity of the risk; (2) whether the defendant’s conduct violates a separate	15
criminal statute; (3) the likelihood of harm to the child; and (4) the length of time	16
the conditions were allowed to exist and the amount of supervision. Id. ¶ 9 (internal	17
quotation marks and citation omitted). The State “must present specific evidence . . .	18
connecting the circumstances to a substantial and foreseeable risk of harm[.]” Id.	19

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{13} 	We disagree with Defendant’s contention that the circumstances of this case	1
create only a hypothetical danger. Instead, we conclude that all the factors identified	2
by our Supreme Court weigh in favor of the conclusion that Defendant created a	3
substantial and foreseeable risk of harm to Child. Defendant placed his nine-year-	4
old son in control of a motor vehicle and instructed him to drive a distance of about	5
twenty-eight miles on U.S. Highway 24 while Defendant slept, creating a grave risk	6
to Child. When he realized Officer Murphy had pulled up behind him, Defendant	7
drove the vehicle from the passenger seat while he was intoxicated, violating a	8
separate criminal statute. Defendant also forced Child to violate NMSA 1978,	9
Section 66-5-2(A)(1) (2013), which prohibits driving “any motor vehicle . . . upon a	10
highway in this state unless the person . . . holds a valid license issued under the	11
provisions of the Motor Vehicle Code[.]” The likelihood of harm to Child was	12
significant due to Child’s age and the inherent danger of an untrained, unlicensed	13
driver operating a motor vehicle on a U.S. highway. Finally, the conditions	14
continued for a significant time with no supervision while Child drove from	15
Shiprock to Farmington with Defendant sleeping through most of it.	16
{14} 	Defendant argues this case is akin to State v. Garcia, 2014-NMCA-006, 315	17
P.3d 331, requiring that we conclude that the danger to Child was hypothetical. We	18
disagree. In Garcia, the mother of a young child fell asleep in her apartment after	19
consuming drugs and alcohol. Id. ¶¶ 2, 4. The child was subsequently discovered	20

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wandering around outside of the apartment with no supervision. Id. ¶ 2. The Garcia	1
Court concluded that “[t]he record [was] completely devoid of evidence indicating	2
that [the d]efendant’s voluntary intoxication created the situation in which her	3
unsupervised child would foreseeably leave the apartment . . . and be vulnerable to	4
a substantial risk of injury.” Id. ¶ 12. In contrast, here, Defendant gave Child control	5
of a motor vehicle and directed him to drive it a long distance and then fell asleep,	6
leaving Child to operate the vehicle unsupervised—a situation that created a	7
substantial and foreseeable risk to Child. For the reasons stated, we conclude that	8
the State presented sufficient evidence to support Defendant’s conviction for	9
reckless child endangerment.	10
Prosecutorial Misconduct	11
{15} 	Defendant contends that the State committed prosecutorial misconduct by	12
making “false and misleading statements during closing argument.” Citing State v.	13
Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-	14
NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant points to two statements, neither	15
of which were objected to, he claims entitle him to the reversal of his convictions.	16
{16} 	First, Defendant complains “the prosecutor argued that [Defendant] controlled	17
the steering of his car while [Child] drove.” Defendant does not explain how the	18
prosecutor’s statement was inappropriate, and we note Child testified that when	19
Defendant was alerted that Officer Murphy pulled behind Defendant’s vehicle,	20

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Defendant put the car in drive, pushed Child’s leg down to press on the gas, and	1
grabbed Child’s arm to assist him in turning the steering wheel. In light of Child’s	2
testimony, we see no misconduct on the part of the prosecutor arising out of this	3
comment, as the prosecutor’s comment was grounded in the evidence. See State v.	4
Santillanes, 1970-NMCA-003, ¶ 14, 81 N.M. 185, 464 P.2d 915 (“Statements	5
having their basis in the evidence, together with reasonable inferences to be drawn	6
therefrom, are permissible and do not warrant reversal.”).	7
{17} 	Next, Defendant complains that “[t]he prosecutor . . . made an argument that	8
the reason why there was no evidence of [Defendant’s] blood alcohol content was	9
because he refused to take a breath test when the record clearly reflects the reason	10
there was no evidence of his blood alcohol content was because the State’s witness	11
failed to appear.” Defendant does not provide us with citations to the record where	12
the prosecutor’s statement can be found or supporting his claim that the real reason	13
for the lack of blood alcohol evidence was a witness’s failure to appear. See Rule	14
12-318(A)(3) NMRA (providing that a party’s briefing shall contain citations to the	15
record 	proper, 	transcript 	of 	proceedings, 	or 	exhibits 	supporting 	each 	factual	16
representation). Defendant also fails to cite any authority to support his claim that	17
the statement he alleges to be misconduct amounts to fundamental error, requiring	18
reversal of his conviction. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482,	19
994 P.2d 728 (“Prosecutorial misconduct rises to the level of fundamental error	20

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when it is so egregious and had such a persuasive and prejudicial effect on the jury’s	1
verdict that the defendant was deprived of a fair trial.” (internal quotation marks and	2
citation omitted)). Absent citations to the record and authority to support his claim,	3
we will not review Defendant’s argument. See Corona v. Corona, 2014-NMCA-071,	4
¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not	5
adequately developed.”); State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031	6
(explaining that appellate courts do not review unclear or undeveloped arguments).	7
CONCLUSION	8
{18} 	We affirm Defendant’s convictions.	9
{19} 	IT IS SO ORDERED.	10
_________________________________	11
JULIE J. VARGAS, Judge	12
WE CONCUR:	13
_________________________________	14
JENNIFER L. ATTREP, Judge	15
_________________________________	16
KRISTINA BOGARDUS, Judge	17