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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:14:18 2011.10.10
Certiorari Denied, August 29, 2011, No. 33,163
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-096
Filing Date: July 18, 2011
Docket 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
1
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 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 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.
2
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 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 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.
3
{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 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. 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
4
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 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. 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)).
5
{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 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 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
6
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 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 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 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.
7
{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.
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:
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
8
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.
______________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
______________________________________
JAMES J. WECHSLER, Judge
______________________________________
RODERICK T. KENNEDY, Judge
Topic Index for State v. Cotton, No. 30,014
AE APPEAL AND ERROR
AE-SR Standard of Review
AE-SB Substantial or Sufficient Evidence
CL CRIMINAL LAW
CL-CN Child Abuse and Neglect
CL-DG Driving While Intoxicated
CL-RA Resisting Arrest
CA CRIMINAL PROCEDURE
CA-SE Substantial or Sufficient Evidence
9