State v. Peabody

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 29,874 5 GABRIEL DEAN PEABODY, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Thomas J. Hynes, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Ralph E. Trujillo, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Law Works LLC 15 John A. McCall 16 Albuquerque, NM

17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge.

1 Defendant appeals his conviction for driving while intoxicated (DWI) contrary 2 to NMSA 1978, Section 66-8-102(D)(3) (2005) (amended 2010). Defendant raises 3 four issues on appeal: (1) the arresting officer lacked reasonable suspicion to stop 4 Defendant and the stop was an unreasonable intrusion into Defendant’s right to 5 privacy; (2) certain evidence was admitted during Defendant’s preliminary hearing 6 and at trial in violation of the Confrontation Clause of the Sixth Amendment; (3) 7 Defendant’s right to equal protection was violated when the State exercised a 8 peremptory challenge of a Native American panel member during jury selection; and 9 (4) the evidence was insufficient to convict Defendant of DWI. 10 BACKGROUND 11 The jury convicted Defendant of DWI without being asked to specify which 12 theory of “operating” a motor vehicle formed the basis for its verdict, (1) driving, or 13 (2) actual “physical control” whether or not the vehicle is moving. Defendant has 14 appealed his conviction. Because this is a memorandum opinion and because the 15 parties are familiar with the factual and procedural background in this case, we need 16 not provide a detailed summary here. To the extent necessary, the relevant 17 background information will be referred to in the discussion below. 18 DISCUSSION 19 I. Reasonable Suspicion and Defendant’s Right to Privacy

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1 Defendant argues that his rights under the Fourth Amendment to the United 2 States Constitution and Article II, Section 10 of the New Mexico Constitution were 3 violated because Deputy Nyce did not possess facts sufficient to detain Defendant at 4 the time of the stop and Defendant’s expectation of privacy outweighed Deputy 5 Nyce’s interest in enforcing DWI laws. Defendant contends that a concerned citizen’s 6 anonymous tip, without corroboration, could not provide sufficient information for 7 Deputy Nyce to form reasonable suspicion for the investigative seizure. As such, 8 Defendant asserts the district court erred when it refused to suppress the evidence 9 obtained as a result of the investigative stop. 10 A. Standard of Review 11 “A review of the suppression of evidence is a mixed question of law and fact. 12 We consider the facts in the light most favorable to the prevailing party and defer to 13 the district court’s findings of fact if those findings are supported by substantial 14 evidence.” State v. Anaya, 2008-NMCA-020, ¶ 5, 143 N.M. 431, 176 P.3d 1163 15 (citation omitted). The standard of review for an appeal from an order denying 16 suppression also requires an application of law to the facts, which we review de novo. 17 State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579. The facts in this 18 case are not in dispute; therefore, we review only the legal conclusions made by the 19 district court. State v. Contreras, 2003-NMCA-129, ¶ 4, 134 N.M. 503, 79 P.3d 1111.

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2 1. The Investigation and Seizure of Defendant 3 Defendant was already parked next to a gas pump at a Shell station when 4 Deputy Nyce located him. Based on the “attempt to locate” dispatch, Deputy Nyce 5 stopped his vehicle and approached Defendant to initiate an investigation. At that 6 point, an investigative seizure occurred. Id. ¶ 5 (“A brief detention for investigatory 7 purposes is a seizure entitled to Fourth Amendment protections.”). While all seizures 8 must be reasonable, “[a] police officer may . . . approach a person [to] investigat[e] 9 possible criminal behavior even though there is no probable cause to make an arrest.” 10 Id. (internal quotation marks and citation omitted). To justify a brief investigatory 11 stop, the officer must be able to articulate specific facts which, under the totality of 12 the circumstances, create a “reasonable suspicion that the individual in question is 13 engaged in or is about to be engaged in criminal activity.” Id. “Reasonable suspicion 14 is dependent on both the content of information possessed by the police and its degree 15 of reliability.” Id. Therefore, when an anonymous tip provides the basis for 16 reasonable suspicion, it must generally be either sufficiently reliable or corroborated. 17 Id. A tip by an anonymous concerned citizen that “observed the details personally” 18 is generally considered reliable, even more reliable than a police informant or a crime- 19 stoppers informant. Id. ¶¶ 10, 12. We also recognize that “law enforcement officers

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1 can make an investigatory stop of a vehicle based on a contemporaneous tip of erratic 2 driving that accurately describes a given vehicle, even if the officers did not witness 3 the erratic driving.” Id. ¶ 9. 4 In Contreras, an anonymous concerned motorist informed the 911 operator “of 5 a possible drunk driver who was driving a grey van, towing a red Geo, and driving 6 erratically.” Id. ¶ 2. This information was passed along by dispatch, and two deputies 7 that were on patrol found the vehicle described and initiated a traffic stop. Id. Neither 8 deputy observed erratic driving before stopping the vehicle. Id. This Court 9 determined that the minimal intrusion of a brief investigatory stop was reasonable 10 under the totality of the circumstances because “[t]he facts . . . allow the inference 11 that the anonymous caller was a reliable concerned motorist; the information given 12 was detailed enough for the deputies to find the vehicle in question and confirm the 13 description; and the caller was an apparent eyewitness to the erratic driving.” Id. ¶ 21. 14 Contreras is almost identical to the present case with one exception: Deputy 15 Nyce did not need to initiate a traffic stop because Defendant had stopped to refuel his 16 truck at the Shell station. In both cases, callers initially informed dispatch that they 17 suspected a driver of driving while under the influence, and in both cases an officer 18 easily identified the suspect vehicle based on the information provided. In this case, 19 like in Contreras, the motorist was a concerned citizen who personally observed the

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1 erratic driving. Even though Deputy Nyce could not corroborate Defendant’s erratic 2 driving, Contreras explained that “there may be circumstances in which the danger 3 alleged in an anonymous tip might be so great as to justify a search without a specific 4 showing of reliability[.]” Id. ¶ 6. Such a circumstance is raised when dealing with 5 “the possible threat to public safety that a drunk driver poses[.]” Id. ¶ 21 Therefore, 6 since the truck matched the “attempt to locate” dispatch, Deputy Nyce was justified 7 in approaching Defendant at the Shell station. The minimal intrusion of this brief 8 investigation and questioning of Defendant was justified without the need for 9 additional independent observation or verification of improper driving. Id. 10 Defendant argues that Contreras is not controlling because of the fact that his 11 truck was not moving at the time of Deputy Nyce’s investigation at the Shell station 12 and this encounter violated his expectation of privacy. Because Defendant was 13 already stopped to refuel at the Shell station when police located him, Defendant 14 argues that “[t]he exigency of a possible threat to public safety that the moving car and 15 drunk driver posed in Contreras is distinguished.” Therefore, Defendant argues that 16 the proper legal analysis in this case requires “the assertion of illegality [to also] be 17 accurate.” We disagree and have already explained that “it is the imminent threat to 18 public safety that distinguishes these [driving while under the influence] cases” from 19 the authority relied upon by Defendant. 2003-NMCA-129, ¶ 15. As such, the issue

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1 is whether Defendant continued to be an imminent threat to public safety when he 2 pulled his truck over to refuel on his way home from work. 3 Even though his truck was not moving when Deputy Nyce located him to 4 investigate possible erratic driving, Defendant still posed an immediate threat to 5 public safety. Deputy Nyce could reasonably infer that Defendant briefly stopped 6 driving for the purpose of refueling his truck and, as Defendant stated his intention to 7 continue driving home, Deputy Nyce could reasonably infer that Defendant would 8 continue driving once his stop at the Shell station was completed. Defendant’s 9 statement of his intent to continue driving home was sufficient confirmation that he 10 was a continuing threat to public safety. As such, reasonable inferences from the 11 evidence support Deputy Nyce’s conclusion that the exigency and threat to public 12 safety posed by Defendant remained imminent. We conclude that the investigative 13 seizure was reasonable under the totality of the circumstances and affirm the district 14 court’s denial of Defendant’s motion to suppress. 15 II. Defendant's Right of Confrontation 16 On appeal, Defendant also raises two arguments regarding his rights under the 17 Confrontation Clause of the Sixth Amendment. First, Defendant argues that the 18 district court improperly refused to quash the criminal information issued against him 19 after the magistrate court allowed the anonymous 911 caller’s description of

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1 Defendant’s driving to be submitted through the testimony of Deputy Nyce at the 2 preliminary hearing. Second, he asserts that the district court improperly admitted 3 evidence at trial in violation of the Confrontation Clause. “Claimed violations of the 4 Confrontation Clause are questions of law which we review de novo.” State v. Lopez, 5 2011-NMSC-035, ¶ 10, 150 N.M. 179, 258 P.3d 458.

6 A. The Application of the Confrontation Clause During Preliminary Hearings 7

8 Defendant claims that during the preliminary hearing held before the San Juan 9 County Magistrate Court on April 2, 2009, his objection to certain testimony given by 10 Deputy Nyce was improperly denied. He further asserts that the objectionable 11 testimony by Deputy Nyce involved a report to dispatch by a motorist in Colorado 12 regarding Defendant’s driving behavior. Based upon this testimony, Defendant filed 13 a motion in the district court to strike the criminal information filed against Defendant. 14 Defendant now argues that the Confrontation Clause applies to the testimony provided 15 by Deputy Nyce at the preliminary hearing but he fails to identify any ruling issued 16 by the district court addressing this motion to strike. 17 The Confrontation Clause states that “[i]n all criminal prosecutions, the accused 18 shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. 19 Const. amend. VI. Citing State v. Rivera, 2008-NMSC-056, ¶ 19, 144 N.M. 836, 192 20 P.3d 1213, the State contends that this language mandates that the Confrontation

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1 Clause applies only to testimony in “criminal prosecutions” and should be considered 2 a trial right, not a pretrial right. Defendant contends that the Confrontation Clause 3 applies to testimony provided at a preliminary hearing in New Mexico and cites the 4 Supreme Court’s decision in Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969). 5 For the purposes of this Opinion, we shall presume without deciding that the 6 Confrontation Clause applies to testimony provided at the preliminary hearing. We 7 now resolve Defendant’s Confrontation Clause argument on other grounds. 8 Defendant’s Confrontation Clause argument fails on several grounds. First, the 9 information provided by a citizen 911 caller to dispatch is generally considered 10 nontestimonial and does not implicate the Confrontation Clause. See State v. Soliz, 11 2009-NMCA-079, ¶ 13, 146 N.M. 616, 213 P.3d 520 (holding under the facts of the 12 case that a 911 call was nontestimonial), cert. granted, 2009-NMCERT-007, 147 13 N.M. 363, 223 P.3d 360; see also State v. Ortega, 2008-NMCA-001, ¶¶ 14, 28, 143 14 N.M. 261, 175 P.3d 929 (explaining that a phone call to a 911 operator is generally 15 nontestimonial because the purpose of the phone call is to enable police assistance to 16 meet an ongoing emergency), overruled on other grounds by State v. Mendez, 2010- 17 NMSC-044, ¶ 40, 148 N.M. 761, 242 P.3d 328. Second, Defendant’s brief has failed 18 to address the four factors required under Soliz to determine whether the 911 call 19 referenced by Deputy Nyce should be recognized as testimonial rather than

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1 nontestimonial. See Soliz, 2009-NMCA-079, ¶ 13 (“[A] statement is likely 2 nontestimonial if (1) the individual is describing events as they are actually happening 3 rather than describing past events; (2) the individual is facing an ongoing emergency; 4 (3) when viewed objectively, the elicited statements are necessary to resolve a present 5 emergency rather than simply to learn what had happened in the past; and (4) the 6 individual’s statements . . . were provided over the phone in an environment that was 7 neither tranquil nor safe.”); see also State v. Gee, 2004-NMCA-042, ¶ 25, 135 N.M. 8 408, 89 P.3d 80 (noting that issues not briefed are deemed abandoned). Third, 9 Defendant’s brief has failed to provide proper citations to the record regarding the 10 evidence and rulings necessary to address his Confrontation Clause argument. See 11 State v. Boergadine, 2005-NMCA-028, ¶ 30, 137 N.M. 92, 107 P.3d 532 (“Without 12 an appropriate cite to the record, we do not comb the record to find whether an issue 13 was properly preserved. As such, we need not address this contention.” (citation 14 omitted)). Fourth and finally, Defendant’s failure to obtain a ruling from the district 15 court on the issue of whether Deputy Nyce’s testimony at the preliminary hearing 16 required the criminal information to be stricken constitutes a waiver that cannot now 17 be addressed on appeal. See State v. Gomez, 1997-NMSC-006, ¶ 14, 122 N.M. 777, 18 932 P.2d 1 (“A trial is first and foremost to resolve a complaint in controversy, and 19 the rule [of preservation] recognizes that a trial court can be expected to decide only

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1 the case presented under issues fairly invoked.”). As a result, we determine that 2 Defendant failed to establish that his rights under the Confrontation Clause to confront 3 a witness against him were violated during the preliminary hearing held before the 4 magistrate court. 5 B. The Application of the Confrontation Clause During Trial 6 Defendant also argued that the district court violated his right to confront 7 witnesses against him at trial in violation of the Confrontation Clause. This argument 8 was based upon the admission of the laboratory blood draw form stating the reasons 9 Defendant’s blood was tested as “[p]ossible [DWI].” Defendant argues that the 10 admission of the blood draw form violated his right to confront witnesses against him 11 because it essentially provided testimony to the jury that the concerned citizen 12 anonymous caller had described Defendant’s driving as a “[p]ossible DWI.” The 13 State contends that we need not address the merits of Defendant’s Confrontation 14 Clause argument because he failed to preserve the claim. We agree. We begin by 15 reviewing the events at trial. 16 During direct examination of an emergency technician with the San Juan 17 County Medical Center, the State elicited testimony regarding the blood draw 18 administered to Defendant and laid the foundation to enter the blood draw form into 19 evidence. The blood draw form contained the specific notation that Defendant

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1 complains of on appeal. Under “Reason Suspect Stopped,” the document notes: 2 “Attempt to Locate for Possible [DWI].” Defense counsel did not object when this 3 exhibit was admitted (Exhibit 1) and the State published the exhibit to the jury. 4 The State again used Exhibit 1 during its direct examination of Deputy 5 Aeschlimann. Again, Exhibit 1 was shown to the jury without objection from defense 6 counsel. However, toward the end of direct examination of Deputy Aeschlimann, 7 defense counsel requested a bench conference. Defense counsel complained of the 8 notation on Exhibit 1, objected on the basis of relevance, and made a motion for 9 mistrial. A recess was taken and the trial judge stated that when the State offered 10 Exhibit 1, Defendant did not object. Defense counsel explained that he had missed 11 the notation and assumed the State would have redacted the document. He argued that 12 it was hearsay and in violation of the Confrontation Clause. The district court 13 explained that the notation was different from the erratic driving discussed at pretrial 14 and ruled that the notation on Exhibit 1 was not prejudicial. 15 The record reflects that Exhibit 1 was twice shown to the jury without objection 16 from Defendant. As such, Defendant failed to timely alert the district court to the 17 alleged Confrontation Clause issue regarding the information contained in Exhibit 1. 18 See State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942 (“The 19 objection must be timely and must specifically apprise the district court of the claimed

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1 error, resulting in an intelligent ruling from the district court.”); State v. Garcia, 2005- 2 NMCA-042, ¶ 39, 137 N.M. 315, 110 P.3d 531 (holding the defendant’s objections 3 to testimony after it had already been heard were untimely and failed to preserve the 4 issue for review on appeal “[b]ecause the horse was already out of the barn” (internal 5 quotation marks and citation omitted)); State v. Neswood, 2002-NMCA-081, ¶ 18, 132 6 N.M. 505, 51 P.3d 1159 (holding an objection untimely when raised after the 7 testimony has been heard, such that the issue would not be considered on appeal). As 8 a result, we will not address this argument further as Defendant’s objection was 9 untimely. 10 III. The State’s Use of Peremptory Challenges 11 Defendant’s third argument is that the State’s peremptory challenge against a 12 prospective juror of Native American descent was racially motivated and violated his 13 constitutional right to equal protection. “It is well established that the State may not, 14 during the jury selection process, use its peremptory challenges to exclude otherwise 15 unbiased and well-qualified individuals solely on the basis of their race.” State v. 16 Martinez, 2002-NMCA-036, ¶ 9, 131 N.M. 746, 42 P.3d 851. Exclusions on the basis 17 of race “violate the equal protection rights of both the defendant and the prospective 18 jurors.” Id. 19 New Mexico district courts follow the three-step analysis outlined in Batson v.

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1 Kentucky, 476 U.S. 79, 94-95 (1986), to determine whether the State has improperly 2 discriminated on the basis of race in using peremptory challenges. State v. Jones, 3 1997-NMSC-016, ¶ 3, 123 N.M. 73, 934 P.2d 267; Martinez, 2002-NMCA-036, ¶ 10. 4 First, a defendant must make a prima facie showing of racial discrimination. Jones, 5 1997-NMSC-016, ¶ 3. Second, the State must articulate a racially neutral explanation 6 for its challenges. Id. Third, if the district court accepts the State’s explanation, the 7 defendant must show that the reason given is actually a pretext for a racially 8 discriminatory intent. Id. In reviewing a claim of racial discrimination in the use of 9 peremptory challenges, we defer to the district court’s factual findings, but we review 10 its legal conclusions de novo. Martinez, 2002-NMCA-036, ¶ 21. 11 In the present case, the State used a peremptory challenge on a juror of Navajo 12 descent. Noting that both this juror and the Defendant were Native Americans, 13 Defendant objected. The record indicates, however, that the district court made no 14 findings on whether Defendant established the first step of the Batson inquiry. See 15 State v. Jim, 107 N.M. 779, 781, 765 P.2d 195, 197 (Ct. App. 1988) (“In order to 16 establish a prima facie case, [the] defendant must show that: (1) [the prospective juror] 17 is a member of a cognizable racial group; (2) the state has exercised its peremptory 18 challenges to remove members of that group from the jury panel; and (3) these facts 19 and any other relevant circumstances raise an inference that the state used its

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1 challenges to exclude members from the panel solely on account of their race.”). 2 Defense counsel merely challenged the strike under Batson. At that point, the 3 prosecutor offered a racially neutral explanation for the strike. Thus, the district court 4 had no opportunity to determine whether Defendant had made a prima facie showing 5 of intentional discrimination and we proceed with the next step of the analysis. See 6 State v. Gerald B., 2006-NMCA-022, ¶¶ 31-32, 139 N.M. 113, 129 P.3d 149 7 (explaining that the preliminary issue of whether the defendant met the burden of 8 presenting a prima facie case becomes moot when the district court proceeds past the 9 first step of the Batson analysis without making any findings). 10 In the second step of the Batson analysis, the burden shifts to the State to 11 articulate a racially neutral explanation for the peremptory challenge. Gerald B., 12 2006-NMCA-022, ¶ 33. At this point, the focus of the inquiry “is the facial validity 13 of the prosecutor’s explanation.” Jones, 1997-NMSC-016, ¶ 3 (internal quotation 14 marks and citation omitted). The State explained that it exercised its challenge 15 because the prospective juror had listed no job history in his questionnaire. Because 16 challenging a juror for failure to list a job history in his questionnaire is a racially 17 neutral, specific reason, the State met its step-two burden. See id. ¶ 4 (finding that 18 failure to make eye contact and lack of assertiveness were facially valid explanations 19 for the state’s peremptory challenge); State v. Begay, 1998-NMSC-029, ¶ 13, 125

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1 N.M. 541, 964 P.2d 102 (finding the state’s explanation that a prospective juror was 2 “not very responsive on the jury questionnaire and had displayed unfavorable body 3 language” facially valid). The district court could have found the explanation 4 unpersuasive, but it did not do so. See Jones, 1997-NMSC-016, ¶ 4. 5 Therefore, step three of the Batson analysis required Defendant to adduce 6 rebuttal evidence to refute the State’s explanation or otherwise prove the prosecutor 7 had intentionally discriminated. See id.; Begay, 1998-NMSC-029, ¶ 14 (“A 8 peremptory challenge that is found to be valid on its face stands unless the defendant 9 comes forward with a refutation of the stated reason—e.g., by challenging its factual 10 basis-or proof of purposeful discrimination by the prosecutor.”). The record indicates 11 that Defendant failed to challenge the proffered reason for striking the prospective 12 juror. Defense counsel responded to the State’s proffered reason by stating simply 13 that he did not believe that no job history qualified. Defendant failed to meet his 14 burden of producing evidence that either the prospective juror was, in fact, employed 15 or that the State was using his lack of job history as a mere pretext for discrimination. 16 Because we review the action of the district court under a deferential standard, we 17 conclude that the trial court was in the best position to evaluate the State’s sincerity 18 and to determine it did not purposefully discriminate in striking the juror. Based on 19 the foregoing facts, the district court did not abuse its discretion in concluding that the

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1 State provided a non-discriminatory, race-neutral explanation for its peremptory 2 challenge. As such, we conclude that Defendant failed to carry his burden of showing 3 sufficient evidence to support a finding of discriminatory intent and his equal 4 protection claim fails. 5 IV. Sufficiency of the Evidence After the Sims Decision 6 Defendant’s final argument is that the evidence was insufficient to convict him 7 of DWI. Specifically, Defendant argues that under the holding in State v. Sims, 8 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, the evidence was insufficient to prove 9 that he was in actual physical control of his truck. 10 A. Standard of Review 11 We review the evidence to determine “whether substantial evidence of either 12 a direct or circumstantial nature exists to support a verdict of guilt beyond a 13 reasonable doubt with respect to every element essential to a conviction.” State v. 14 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, we 15 view the evidence in the light most favorable to the guilty verdict, indulging all 16 reasonable inferences and resolving all conflicts in the evidence in favor of the 17 verdict. State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176; 18 State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). 19 B. Evidence of DWI by Driving a Vehicle

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1 The decision in Sims did not change the requirements for convicting a driver of 2 DWI when the person is driving the vehicle. Sims, 2010-NMSC-027, ¶ 24. In Sims, 3 the only issue presented for review was whether the defendant was in actual physical 4 control of his vehicle while it was parked on the side of the roadway. Id. ¶¶ 1-3. 5 “Had the police officer or other witnesses observed Defendant behind the steering 6 wheel of a moving vehicle at or near the time of his apprehension, the State would not 7 have to rely on ‘actual physical control’ to prove that Defendant was DWI.” Id. ¶ 3; 8 State v. Mailman, 2010-NMSC-036, ¶¶ 24-28, 148 N.M. 702, 242 P.3d 269 9 (recognizing that the factfinder may infer that the accused drove while intoxicated 10 based on circumstantial evidence that includes “the accused’s own admissions, the 11 location of the vehicle next to the highway, or any other similar evidence that tends 12 to prove that the accused drove while intoxicated”). Defendant’s brief did not 13 challenge the sufficiency of the evidence regarding whether Defendant’s conviction 14 was based upon the act of driving the vehicle prior to his stop to refuel at the Shell 15 station. 16 In the present case, Deputy Nyce located Defendant’s vehicle within minutes 17 of receiving the “attempt to locate” dispatch. Defendant admitted that he was the 18 driver of the truck and the only person in the truck. Additionally, Defendant admitted 19 that he had been driving his truck shortly before Deputy Nyce located it at the Shell

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1 station. Defendant also said that he came from work and was planning on driving 2 home from the Shell station. Based upon the reasonable inferences to be drawn from 3 the evidence, the State presented sufficient evidence for Defendant to be convicted of 4 DWI based upon his acts of driving prior to his stop for refueling at the Shell station. 5 Because Defendant has not challenged the sufficiency of this evidence regarding the 6 driving of his truck prior to stopping at the Shell station, Sims would still allow a jury 7 to convict Defendant of DWI for this specific behavior. 8 C. The Essential Elements of Actual Physical Control Established by Sims 9 Our New Mexico Supreme Court recently clarified the requirement of actual 10 physical control in Sims and Mailman. In Sims, our Supreme Court recognized that 11 a defendant could continue to be convicted of DWI under Section 66-8-102(A) based 12 on actual physical control of a vehicle without actually driving the vehicle. Sims, 13 2010-NMSC-027, ¶ 3. Also recognizing that “an intoxicated individual may exercise 14 a great deal of control over a vehicle, yet still pose little danger to . . . the public[,]” 15 our Supreme Court added a new element to a DWI charge that is based on actual 16 physical control. Id. ¶¶ 25, 26. Sims now requires that “a fact finder cannot simply 17 assume or speculate that the individual in question might sometime in the future 18 commence driving his or her vehicle.” Id. ¶ 4. Rather, actual physical control requires 19 proof not only of control over the vehicle, but also of a general intent to drive so as

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1 to endanger any person. Id. ¶¶ 24, 26. This change is applicable to the present case 2 because it was on direct appeal at the time Sims was decided. Mailman, 3 2010-NMSC-036, ¶ 9 (“We take this opportunity to clarify that our holding in Sims 4 applies prospectively to all cases pending in the trial court and on direct appeal as of 5 the date that Sims was filed, June 8, 2010.”). 6 Similar to Mailman, the jury in the present case should have been instructed that 7 actual physical control also required Defendant to have a general intent to drive so as 8 to endanger any person. Failure to include the correct general intent instruction 9 established in Sims could require a reversal of Defendant’s DWI conviction and a 10 possible remand for a new trial if insufficient evidence exists to support the elements 11 of DWI by actual physical control. See Mailman, 2010-NMSC-036, ¶¶ 9, 13-21 12 (taking “a fresh look at the issue presented” to determine whether the evidence was 13 sufficient to prove DWI based on actual and physical control under the new analysis 14 in Sims). As a result, we now review the sufficiency of the evidence to determine 15 whether it would support a DWI based upon Defendant’s physical control of his truck. 16 We conclude that the evidence was sufficient for the State to meet its burden 17 of proof in this case and establish actual physical control under the new Sims analysis. 18 Under the totality of the circumstances presented in this case, Defendant was more 19 than a mere passive occupant of his truck. A concerned citizen motorist saw his truck

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1 being driven on the highway and reported erratic driving prior to Defendant’s 2 encounter at the Shell station. Defendant admitted that he was the driver of the truck 3 and the only person in the truck. Defendant was located at the gas pump of the Shell 4 station. He showed signs of intoxication and refused to perform the requested field 5 sobriety tests. Most importantly, Defendant told Deputy Nyce that he came from 6 work and was planning on driving home from the Shell station. As a result, the fact 7 that Deputy Nyce located Defendant standing in front of his truck by the time he 8 pulled his police unit over to investigate the “attempt to locate” dispatch is not 9 dispositive. Sufficient evidence was presented to establish that Defendant was in 10 actual physical control of his truck with an intent to drive home from the Shell station. 11 See Garcia, 2005-NMSC-017, ¶ 20 (allowing a jury to draw reasonable inferences 12 from the evidence to reach its verdict). 13 There was sufficient evidence for the jury to legally convict Defendant based 14 upon both legal theories presented on the general jury instruction, including evidence 15 of general intent to drive so as to endanger any person as established in Sims. See 16 Mailman, 2010-NMSC-036, ¶ 12 (“a conviction under a general verdict must be 17 reversed where it is based on more than one legal theory and at least one of those 18 theories is legally invalid.”); see also State v. Olguin, 120 N.M. 740, 740-41, 906 P.2d 19 731, 731-32 (1995) (holding that due process does not require a general verdict of

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1 guilt to be set aside so long as one of the alternative bases for conviction is supported 2 by sufficient evidence and the other theories are not legally inadequate). Accordingly, 3 it is unnecessary to remand for a new trial and we affirm. 4 CONCLUSION 5 For the foregoing reasons, we affirm Defendant’s conviction for DWI. 6 IT IS SO ORDERED.

7 ___________________________________ 8 TIMOTHY L. GARCIA, Judge

9 WE CONCUR:

10 _________________________________ 11 RODERICK T. KENNEDY, Judge

12 _________________________________ 13 MICHAEL E. VIGIL, Judge