This memorandum opinion was not selected for publication in
the New Mexico Appellate 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on the citation of unpublished memorandum opinions.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.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JACOB CARRILLO,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Jacqueline D. Flores, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Lisa A. Torraco,
Albuquerque, NM, for Appellant
M. MONICA ZAMORA, Judge. WE CONCUR: JAMES
J. WECHSLER, Judge, MICHAEL E. VIGIL, Judge
{1} Defendant appeals
from an on-the-record district court judgment affirming his metropolitan court
conviction for aggravated DWI (refusal) and related offenses. We issued a
calendar notice proposing to affirm. Defendant has responded with a memorandum
in opposition. We affirm.
{2} Issue 1: Defendant has claimed
that the aggravated DWI charge should have been reduced to simple DWI because,
although he initially refused to submit to chemical testing, he “cured” the
initial refusal by subsequently consenting within a reasonable time.
See
generally In re Suazo,
1994-NMSC-070, ¶ 24,
117 N.M. 785,
877 P.2d
1088 (adopting five-part test to consider whether an initial refusal to submit
to testing has been revoked). Defendant’s argument is predicated on his
assertion that his testimony that he revoked his initial refusal was
“uncontroverted” below. However, the officer who transported Defendant to the
PTC testified that he did not remember Defendant changing his mind and
consenting to testing. [RP 194] The officer also buttressed this testimony with
the claim that he would have taken Defendant to a closer station in the event
that Defendant had, in fact, consented. [RP 194] Under our standard of review,
we defer to the factfinder to make credibility determinations and to resolve
conflicts in the evidence.
See State v. Roybal, 1992-NMSC-114, ¶
9,
115 N.M. 27,
846 P.2d 333. We therefore presume that the factfinder rejected
Defendant’s testimony and concluded that he did not revoke his refusal.
See
State v. Day,
2008-NMSC-007, ¶ 15,
143 N.M. 359, 176 N.M. 1091 (observing
that factfinder is free to reject a defendant’s version of events).
{3} Issue 2: Defendant claims that the
trial court erred in refusing to dismiss based on the State’s failure to
preserve a PTC videotape taken on the night of his arrest. Defendant asserts
that he asked a second time to take the test once he was at the PTC. [DS 7] As
indicated above, the factfinder was free to reject Defendant’s claim that the
initial request to take the test was made just a few minutes after the initial
refusal. In light of this, a first request made at the PTC would not be
considered a reasonable time under
Suazo.
See id.,
1994-NMSC-070,
¶ 26 (stating that request must be made in “a very short time, never more than
a matter of minutes”). Accordingly, Defendant would not be prejudiced by the
absence of the tape even if it showed that he had made a request.
See In re
Ernesto M., Jr.,
1996-NMCA-039, ¶ 10,
121 N.M. 562,
915 P.2d 318 (“An
assertion of prejudice is not a showing of prejudice.”).
{4} For the reasons set
forth above, we affirm.