City of Farmington v. Dickerson

• Court: New Mexico Court of Appeals
• Decided: November 18, 2009
• Docket: 29,540
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 CITY OF FARMINGTON,

8 Plaintiff-Appellee,

9 v. NO. 29,540

10 TYLER DICKERSON,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 William C. Birdsall, District Judge

14 Simpson Law Office 15 Patricia L. Simpson 16 Farmington, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Eleanor Brogan, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge. 1 Defendant appeals his conviction for driving while intoxicated. [RP 121-22]

2 He contends that his motion to dismiss should have been granted because the district

3 court could not take judicial notice of the municipal ordinance under which he was

4 convicted. [DS 2] He also contends that the court should have granted his motion to

5 suppress because there was no reasonable suspicion to stop him. [DS 1]

6 DISCUSSION

7 A. Judicial Notice

8 We reject Defendant’s argument that the district court improperly took judicial

9 notice of the municipal ordinance. The district court was presiding over a de novo

10 trial. The municipal ordinance appears to have been listed in the citation that was

11 before the municipal court, [RP 20-21] in the criminal complaint, and in the amended

12 criminal complaint. [RP 54-56] These documents became part of the record in district

13 court, and a court may take judicial notice of its own files and records. See State v.

14 Powers, 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct. App. 1990). Accordingly, we

15 reject Defendant’s argument that dismissal was required. We note that this is the same

16 approach we took in City of Aztec v. Gurule, No. 28,705, slip op. at 3-4 (N.M. Ct.

17 App. Dec. 2, 2008) [RP 99-103] and that certiorari has been granted in Gurule on this

18 issue. [RP 114] City of Aztec v. Gurule, 2009-NMCERT-002, 145 N.M. 705, 204

2 1 P.3d 30.

2 B. Reasonable Suspicion

3 “A reasonable suspicion is a particularized suspicion, based on all the

4 circumstances that a particular individual, the one detained, is breaking, or has broken,

5 the law. Unsupported intuition and inarticulate hunches are not sufficient.” State v.

6 Rivas, 2007-NMCA-020, ¶ 7, 141 N.M. 87, 150 P.3d 1037 (filed 2006) (internal

7 quotation marks and citation omitted). “Questions of reasonable suspicion are

8 reviewed de novo by looking at the totality of the circumstances to determine whether

9 the detention was justified.” State v. Robbs, 2006-NMCA-061, ¶ 9, 139 N.M. 569,

10 136 P.3d 570.

11 The record contains ample facts to support reasonable suspicion. Officer Smith

12 observed Defendant drive his truck from a bar parking lot off a curb, placing the truck

13 in the eastbound lane of traffic while facing west. [RP 53] When Defendant saw the

14 officer, he immediately reversed back into the parking lot. [RP 53] Defendant’s act

15 of driving off the curb, and facing west into the eastbound lane of traffic, combined

16 with his attempt to avoid the officer, created reasonable suspicion. See State v.

17 Franco, 94 N.M. 243, 244, 608 P.2d 1125, 1126 (Ct. App. 1980) (stating that erratic

3 1 driving or obvious attempts to avoid officers can support a finding of reasonable

2 suspicion).

3 Moreover, if Defendant is arguing that the dash camera video did not

4 substantiate the officer’s observations, [RP 28] that would not be dispositive. The

5 court was free to give the officer’s testimony the appropriate weight and was not

6 required to accept Defendant’s argument. See State v. Foxen, 2001-NMCA-061, ¶

7 17, 130 N.M. 670, 29 P.3d 1071 (providing that conflicts in the evidence, including

8 conflicts in the testimony of witnesses, are to be resolved by the factfinder and stating

9 that the factfinder is free to reject the defendant’s version of events). We conclude

10 that reasonable suspicion was established.

11 For these reasons, we affirm.

12 IT IS SO ORDERED.

13 _______________________________ 14 JAMES J. WECHSLER, Judge

15 WE CONCUR:

16 _______________________________ 17 RODERICK T. KENNEDY, Judge

4 1 _______________________________ 2 TIMOTHY L. GARCIA, Judge