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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RALPH JONES,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF DE BACA COUNTY, Albert
J. Mitchell, Jr., District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant
LINDA M. VANZI, Judge. WE CONCUR: MICHAEL
D. BUSTAMANTE, Judge, RODERICK T. KENNEDY, Judge
{1} Defendant appeals
from his convictions for aggravated DWI (third offense), assault, and the petty
misdemeanor of disorderly conduct. [RP 254, 262] Our notice proposed to affirm.
Defendant filed a memorandum in opposition, which we have duly considered.
Unpersuaded, we affirm.
{2} In his memorandum
in opposition, Defendant continues to argue that there was insufficient
evidence to uphold his conviction for aggravated DWI. [MIO 3]
See State v.
Sutphin,
1988-NMSC-031, ¶ 21,
107 N.M. 126,
753 P.2d 1314 (setting forth
the substantial evidence standard of review). As support for his continued
argument, Defendant refers to
State v. Franklin,
1967-NMSC-151,
78 N.M.
127,
428 P.2d 982, and
State v. Boyer,
1985-NMCA-029,
103 N.M. 655,
712
P.2d 1. [MIO 4] Specifically, Defendant argues that the officer did not
personally observe Defendant drive. [MIO 4] It was not necessary for the
officer to make this personal observation, however, as circumstantial evidence
of past driving is enough to support a conviction.
See State v. Mailman,
2010-NMSC-036, ¶¶ 23, 26-28,
148 N.M. 702,
242 P.3d 269 (recognizing that the
state may introduce direct or circumstantial evidence that the defendant drove
while intoxicated). As we emphasized in our notice, ample evidence was
presented to establish the element of driving. The victim testified that he
observed Defendant get into his vehicle and drive. [DS 4; CN 3] Additionally,
an employee of the De Baca County Sheriff’s Department testified that he heard
the driver’s side door close and Defendant walking out of the vehicle. [RP 145]
Evidence was also presented that Defendant was the only person in the vehicle.
[RP 148]
{3} Accordingly, for
these reasons and those provided in our notice, we hold that there was sufficient
evidence presented to support the jury’s guilty verdict for aggravated DWI.
See
State v. Orquiz,
2012-NMCA-080, ¶ 4,
284 P.3d 418 (finding that there was
sufficient circumstantial evidence of past driving to support a DWI conviction
where “no witnesses testified to seeing [the d]efendant’s vehicle in motion,
[but] the investigating officer relayed Defendant’s on-scene admission that he
had been driving when his brakes failed, as well as the officer’s own
observations of the single-vehicle crash scene”);
see also State v. Soto,
2007-NMCA-077, ¶¶ 3-5, 32, 34,
142 N.M. 32,
162 P.3d 187 (holding that there
was sufficient evidence to support an aggravated DWI conviction, even though
there was no evidence of bad driving, the defendant was cooperative, and no
field sobriety tests were conducted, but the defendant’s breath smelled
strongly of alcohol, the defendant had slurred speech and bloodshot, watery
eyes, the defendant admitted to drinking, an officer observed empty beer cans
where the defendant had been, and the defendant declined to take a blood test),
overruled on other grounds by State v. Tollardo,
2012-NMSC-008,
275 P.3d
110.
{4} Second, Defendant
continues to assert in his memorandum in opposition that insufficient evidence
was presented to support his conviction for assault. [MIO 3-5] As support for
this issue, Defendant refers to
Franklin and
Boyer. [MIO 5] We
acknowledge Defendant’s continued assertion that a reasonable person would not
have found himself or herself in fear if presented with the same set of
circumstances. [MIO 5] However, as we explained in our notice, it was within
the fact finder’s prerogative to conclude otherwise.
See generally State v.
Salas,
1999-NMCA-099, ¶ 13,
127 N.M. 686,
986 P.2d 482 (recognizing that
the appellate court defers to the fact finder when weighing the credibility of
witnesses and resolving conflicts in witness testimony). For the same reasons
provided in our notice, we hold that there was substantial evidence to support
the jury’s conviction for assault.
{5} Third, Defendant
continues to argue that the district court should not have admitted the entire
video of the arrest into evidence because portions of the video were irrelevant
and overly prejudicial, specifically those portions containing Defendant’s admission
to prior methamphetamine and marijuana use and references to a previous search
warrant for Defendant’s home. [DS 6; MIO 2-3, 5-7] In support of his
contention, Defendant asserts that the district court erred by not conducting a
proper Rule
11-403 NMRA balancing test. [MIO 5]
{6} We hold that no
abuse of discretion occurred.
See State v. McGhee,
1985-NMSC-047, ¶ 24,
103 N.M. 100,
703 P.2d 877 (explaining that we review the admission of evidence
for an abuse of discretion). The purpose of Rule 11-403 is not to prevent any
prejudice at all; Rule 11-403 only protects against the risk of unfair
prejudice.
See State v. Rojo,
1999-NMSC-001, ¶ 48,
126 N.M. 438,
971
P.2d 829 (“[T]he fact that some jurors might find this evidence offensive or
inflammatory does not necessarily require its exclusion[.]”). Prejudice is
unfair when it “goes only to character or propensity.”
State v. Ruiz,
1995-NMCA-007, ¶ 12,
119 N.M. 515,
892 P.2d 962. “[W]hen the tendered evidence
serves a legitimate purpose other than character or propensity, then that
legitimate purpose should be balanced against the jury’s tendency to use the
evidence illegitimately.”
Id. Our notice observed, and Defendant
acknowledges, that the district court found Defendant’s admission to
methamphetamine to be relevant to present impairment and the officer’s decision
to request a chemical test. [CN 7; MIO 5; RP 168] The district court noted that
Defendant’s delay was a factor in its decision because, although the video had
been disclosed over a year beforehand, Defendant waited to object until after
jury trial had started. [RP 166-67; CN 7] The district court also offered a
curative instruction with respect to that portion of the video. [RP 167; CN 7]
In light of the district court’s determination that the contested portions of
the video were relevant, and the offer of a curative instruction, we conclude
that the district court’s ruling was not contrary to the logic and effect of
the facts and circumstances of the case, untenable, or unjustified by reason.
See
Rojo,
1999-NMSC-001, ¶ 41;
see also State v. Otto,
2007-NMSC-012, ¶¶
14, 22,
141 N.M. 443,
157 P.3d 8 (concluding that no abuse of discretion
occurred under Rule 11-403 by the district court’s admission of the defendant’s
uncharged acts and the victim’s statements to her mother).
Cf. State v.
Franks,
1994-NMCA-097, ¶¶ 5, 7,
119 N.M. 174,
889 P.2d 209 (holding that
the admission of a recorded 911 call where a defendant admitted that he
overdosed on cocaine was not unfairly prejudicial and emphasizing “the ability
of juries to evaluate evidence”).
{7} Lastly, Defendant
continues to argue that the district court should have enforced his signed plea
agreement. [DS 3; MIO 7] As support for his continued argument, Defendant
refers to
Franklin and
Boyer. [MIO 7] Our notice observed that
Defendant was offered and accepted a plea agreement in magistrate court, but
the State subsequently, and successfully, asked the magistrate court not to
accept the plea after discovering that this was Defendant’s third, not first, DWI
offense. [DS 3; MIO 7] After the case was bound over to district court, [RP 8]
Defendant filed a motion to enforce the plea agreement in district court, [RP
66-69, 70-72] which was denied. [RP 83-84] Defendant has advanced no new
arguments in his memorandum in opposition in support of his continued
contention. Accordingly, we conclude that Defendant has failed to demonstrate
error on appeal and therefore affirm.
See State v. Ibarra,
1993-NMCA-040, ¶ 11,
116 N.M. 486,
864 P.2d 302 (“A party opposing summary
disposition is required to come forward and specifically point out errors in
fact and/or law.”).
{8} For the reasons
stated above and in this Court’s notice of proposed disposition, we affirm.
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge