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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,150
5 EMERY BRADLEY,
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 Albuquerque, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
1 Emery Bradley (Defendant) appeals from the district court’s judgment and
2 sentence, entered after a jury trial, convicting Defendant for DWI (per se .08 or
3 above), open container, and driving on a suspended or revoked license. Unpersuaded
4 that Defendant demonstrated error, we issued a notice of proposed summary
5 disposition, proposing to affirm. Defendant filed a memorandum in opposition in
6 response to our notice and a motion to amend the docketing statement. We have
7 considered Defendant’s response, and we remain unpersuaded. Also, we are not
8 persuaded that Defendant has met the standard for amending the docketing statement.
9 Accordingly, we deny Defendant’s motion to amend the docketing statement and
10 affirm his convictions.
11 Sufficiency of the Evidence
12 Under the demands of State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984
13 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985),
14 Defendant challenges the sufficiency of the evidence to support his convictions for
15 open container and DWI. [MIO 5-7] Like his docketing statement, Defendant’s
16 memorandum in opposition does not provide this Court with all the facts material to
17 his sufficiency challenge. See Rule 12-208(D)(3) NMRA (requiring that the
18 docketing statement contain “a concise, accurate statement of the case summarizing
19 all facts material to a consideration of the issues presented”); see also Thornton v.
2
1 Gamble, 101 N.M. 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (construing this
2 appellate rule to include the evidence that supports the trial court’s ruling and warning
3 that the “[f]ailure to comply with these precepts may result in contempt sanctions”).
4 Where an appellant fails “to provide us with a summary of all the facts material to
5 consideration of [his or her] issue, as required by [Rule] 12-208(B)(3), we cannot
6 grant relief on [that] ground.” State v. Chamberlain, 109 N.M. 173, 176, 783 P.2d
7 483, 486 (Ct. App. 1989).
8 Defendant contends that his conviction for open container was not supported
9 by substantial evidence because his car was messy, and the cans the officer removed
10 from Defendant’s car were merely part of the mess. [MIO 7] The jury was free to
11 reject Defendant’s theory, however. See State v. Foxen, 2001-NMCA-061, ¶ 17, 130
12 N.M. 670, 29 P.3d 1071 (providing that conflicts in the evidence, including conflicts
13 in the testimony of witnesses, are to be resolved by the fact finder and stating that the
14 fact finder is free to reject the defendant’s version of events). The record suggests that
15 the State presented a video recording showing an officer removing open containers of
16 alcohol from the car. [RP 59, 74] Contrary to the obligations on appeal set forth
17 above, Defendant does not describe the contents of the video. Without all the relevant
18 facts, we may indulge in all reasonable inferences in support of the verdict. See State
19 v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there
3
1 is a presumption of correctness in the rulings or decisions of the trial court, and the
2 party claiming error bears the burden of showing such error). As a result, we presume
3 the video of the officer removing open containers of alcohol from Defendant’s vehicle
4 supports his conviction for open container. Accordingly, we affirm Defendant’s
5 conviction for open container.
6 Defendant also challenges the sufficiency of the evidence presented to support
7 his conviction for per se DWI. [MIO 5-6] The analyst who tested the alcohol content
8 of Defendant’s blood testified that his blood-alcohol level was .22, well over the legal
9 limit. [MIO 4] Further, the record suggests that Defendant’s blood was drawn within
10 three hours of his driving. [RP 57, 60] This constitutes sufficient evidence to support
11 Defendant’s conviction for per se DWI. See NMSA 1978, § 66-8-102(C)(1) (2010)
12 (stating that “[i]t is unlawful for . . . a person to drive a vehicle in this state if the
13 person has an alcohol concentration of eight one hundredths or more in the person’s
14 blood or breath within three hours of driving the vehicle and the alcohol concentration
15 results from alcohol consumed before or while driving the vehicle”). As a result, we
16 affirm Defendant’s conviction for DWI.
17 To the extent that Defendant asserts that his blood sample was “unaccounted
18 for for more than thirty days” before it was tested, this is in the nature of a challenge
19 to the chain of custody for purposes of admitting the evidence, rather than a challenge
4
1 to the sufficiency of the evidence. [MIO 7] Defendant did not raise this matter in his
2 docketing statement. We do not construe this argument as properly brought under a
3 motion to amend the docketing statement because Defendant has not provided this
4 Court with an adequate factual or legal foundation required of motions to amend the
5 docketing statement. We address this matter more fully below with the motion to
6 amend the docketing statement that Defendant expressly raised in his response to our
7 notice.
8 Motion to Amend the Docketing Statement
9 In cases assigned to the summary calendar, this Court will grant a motion to
10 amend the docketing statement to include additional issues if the motion (1) is timely,
11 (2) states all facts material to a consideration of the new issues sought to be raised, (3)
12 explains how the issues were properly preserved or why they may be raised for the
13 first time on appeal, (4) demonstrates just cause by explaining why the issues were not
14 originally raised in the docketing statement, and (5) complies in other respects with
15 the appellate rules. State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App.
16 1983). This Court will deny motions to amend that raise issues that are not viable,
17 even if they allege fundamental or jurisdictional error. State v. Moore, 109 N.M. 119,
18 129, 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other grounds as
19 recognized in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
5
1 As indicated above, Defendant does not state all the facts material to his
2 assertion of error in the retention of his blood sample for more than thirty days before
3 it was tested. For instance, Defendant does not explain what objections he raised
4 below to the admission of his blood-test results, or why we should construe this matter
5 as a challenge to the sufficiency of the evidence that can be raised for the first time on
6 appeal. Further, Defendant does not explain what arguments the State raised to
7 support admission of the blood test results or the grounds for the district court’s
8 ruling. We re-emphasize that, on appeal, we presume correctness in the rulings or
9 decisions of the trial court, and the party claiming error bears the burden of showing
10 such error. See Aragon, 1999-NMCA-060, ¶ 10. We also note that Defendant does
11 not indicate what regulation he argued was violated in this case that is required by
12 New Mexico Department of Health, Scientific Laboratory Division, Toxicology
13 Bureau (SLD), and we are not persuaded by Defendant’s assertion of error that the
14 testing of his blood sample ran afoul of the approved methods for blood sample
15 collection, analysis, and retention. See 7.33.2.15(A)(1)-(6) NMAC. Without the
16 necessary facts or law to support Defendant’s assertion of error, we summarily reject
17 it.
18 Lastly, Defendant expressly raises a motion to amend the docketing statement
19 to add the issue of whether the district court erred by refusing to allow defense
6
1 counsel to impeach Deputy Frazier with a prior incident of excessive force. [MIO 7-
2 8] In support of this contention, Defendant refers this Court to Rule 11-403(A)(3)
3 NMRA (permitting evidence of a witness’s character under Rules 11-607 NMRA,
4 11-608 NMRA, and 11-609 NMRA) and Rule 11-608(B)(1) (stating that a court may,
5 on cross-examination, allow specific instances of conduct to be inquired into if they
6 are probative of the character for truthfulness of the witness). This issue also is
7 pursued under the demands of Franklin, 78 N.M. at 129, 428 P.2d at 984, and Boyer,
8 103 N.M. at 658-60, 712 P.2d at 4-6. [MIO 8]
9 Again, Defendant does not provide us with sufficient facts. Defendant does not
10 describe the specific instance where the officer allegedly used excessive force against
11 a Native American, or how that demonstrates that the officer “had issues with Native
12 Americans.” [MIO 8] Defendant does not indicate what the State argued in response
13 to Defendant’s arguments or the grounds for the district court’s ruling. Further,
14 without more information, we are not persuaded that the alleged instance of excessive
15 force is probative of the officer’s character for truthfulness. Defendant gives no
16 indication that there was evidence that the officer had a pattern of behavior, or that the
17 alleged instance of excessive force would be probative of the officer’s veracity about
18 the current case where there was no allegation of excessive force, or that the stop was
19 illegal, and it appears that the encounter was videotaped and played for the jury.
7
1 Without further information from Defendant, we are not persuaded that this issue is
2 viable. See State v. Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232
3 (“Generally speaking, a reviewing court defers to the trial court’s decision to admit
4 or exclude evidence and will not reverse unless there has been an abuse of discretion.”
5 (internal quotation marks and citation omitted)). Accordingly, we deny Defendant’s
6 motion to amend the docketing statement. See Moore, 109 N.M. at 129, 782 P.2d at
7 101.
8 For the reasons set forth above, we affirm Defendant’s convictions.
9 IT IS SO ORDERED.
10 _______________________________
11 RODERICK T. KENNEDY, Judge
12 WE CONCUR:
13 ___________________________
14 JONATHAN B. SUTIN, Judge
15 ___________________________
16 J. MILES HANISEE, Judge
8