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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. A-1-CA-36884

 5 LYNN GRAY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Daylene A. Marsh, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VIGIL, Judge.

18   {1}    Defendant Lynn Gray appeals from the district court’s judgment and sentence,

19 convicting him for first offense aggravated DWI. Unpersuaded that Defendant
 1 demonstrated error, we issued a notice of proposed summary disposition, proposing

 2 to affirm. Defendant has responded to our notice with a memorandum in opposition,

 3 which we have duly considered. We remain unpersuaded and affirm.

 4   {2}   On appeal, Defendant challenges the sufficiency of the evidence to support his

 5 conviction on multiple grounds. Our notice contained an exhaustive analysis of each

 6 claim of error, which we do not fully restate herein. Instead, we focus our attention on

 7 Defendant’s response to our notice.

 8   {3}   Defendant’s memorandum in opposition continues to argue that the State failed

 9 to establish that Defendant’s dirt bike was a “motor vehicle” within the meaning of

10 the Motor Vehicle Code. [MIO 4] As we stated in our notice, the DWI statute, NMSA

11 1978, § 66-8-102(A) (2016), applies to any person under the influence of intoxicating

12 liquor who drives a “vehicle within this state.” A “vehicle” is defined broadly as

13 “every device in, upon or by which any person or property is or may be transported

14 or drawn upon a highway, including any frame, chassis, body or unitized frame and

15 body of any vehicle or motor vehicle, except devices moved exclusively by human

16 power or used exclusively upon stationary rails or tracks.” NMSA 1978, §

17 66-1-4.19(B) (2017). For purposes of DWI, we have construed “vehicle” to include,

18 among other things, a moped, State v. Saiz, 2001-NMCA-035, ¶ 1, 130 N.M. 333, 24

19 P.3d 365, and an all-terrain vehicle (ATV), State v. Natoni, 2012-NMCA-062, ¶¶ 1,



                                              2
 1 14, 282 P.3d 769. Defendant does not explain why he believes his motorized dirt bike

 2 should not be considered a “vehicle” and we are not persuaded for the reasons

 3 provided above and in the notice.

 4   {4}   Defendant also continues to argue that the evidence was insufficient because

 5 the State failed to show the video recording of the encounter, which Defendant asserts

 6 would have provided his only hope of contradicting the officer’s testimony about

 7 Defendant’s signs of impairment exhibited during the field sobriety tests. [MIO 4-5]

 8 Defendant does not, however, explain why our analysis of this matter was incorrect

 9 and continues to omit any specific allegation of error relative to the reason for the

10 absence of the video recording. Thus, we continue to believe that its absence is

11 relevant to the weight of the evidence, not its sufficiency.

12   {5}   Specifically, we explained that the State presented the testimony of the officer

13 who observed Defendant’s driving, attempted to stop Defendant, saw Defendant lose

14 control and skid into a fence, smelled alcohol on Defendant, had Defendant perform

15 field sobriety tests (FSTs), transported Defendant to a substation, asked Defendant to

16 submit to a breathalyzer, and arrested Defendant upon his refusal. [CN 2-3; DS 3-6,

17 8] We explained that the officer’s testimony based on his personal observations and

18 Defendant refusal to submit to chemical testing appeared sufficient to support

19 Defendant’s conviction. See State v. Mata Y Rivera, 1993-NMCA-011, ¶ 23, 115 N.M.



                                               3
 1 424, 853 P.2d 126 (holding that the officer’s testimony about his observations of the

 2 defendant’s behavior without other evidence was sufficient to establish that the

 3 defendant was intoxicated and the absence of other forms of evidence was for the

 4 finder of fact to weigh); see State v. Caudillo, 2003-NMCA-042, ¶¶ 8-11, 133 N.M.

 5 468, 64 P.3d 495 (holding that the evidence was sufficient to establish that the

 6 defendant was driving while intoxicated where the defendant was speeding and

 7 involved in an accident; the officers observed that defendant had slurred speech and

 8 a strong odor of alcohol; the defendant admitted to drinking a few beers and he

 9 refused to submit to chemical testing); see State v. Marquez, 2009-NMSC-055, ¶ 16,

10 147 N.M. 386, 223 P.3d 931 (noting that a jury can reasonably infer consciousness of

11 guilt from defendant’s refusal to submit to a breath test), overruled on other grounds

12 by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

13   {6}   We further proposed to hold that the absence of the video recording that may

14 have provided alternative explanations for Defendant’s signs of impairment

15 constituted matters for the finder of fact, not legal error. See Caudillo,

16 2003-NMCA-042, ¶ 11 (“While we recognize there may be reasonable, alternative

17 explanations for each of the physical indicators of intoxication, the jury was not

18 required to find those explanations persuasive. The question on appeal is whether

19 substantial evidence supports the verdict actually rendered, not some other verdict.”).



                                              4
 1   {7}   Because Defendant’s response does not provide us with any factual argument

 2 or legal authority to persuade us that our analysis was incorrect, we reject this claim

 3 of error.

 4   {8}   Lastly, Defendant argues that the State failed to provide sufficient evidence of

 5 intoxication because Defendant did not submit to chemical testing. [MIO 5] As we

 6 stated in our notice, the failure of the State to present evidence of chemical testing

 7 results is explained by the charge itself—aggravated DWI based on Defendant’s

 8 refusal to submit to chemical testing. A defendant’s refusal to submit to a chemical

 9 test is an element of the crime of aggravated DWI under Section 66-8-102(D)(3); the

10 offense does not require a showing that chemical testing revealed a particular blood

11 alcohol level despite the defendant’s refusal. See Section 66-8-102(D)(3)

12 (“Aggravated driving under the influence of intoxicating liquor or drugs consists

13 of . . . refusing to submit to chemical testing, as provided for in the Implied Consent

14 Act, . . . and in the judgment of the court, based upon evidence of intoxication

15 presented to the court, the driver was under the influence of intoxicating liquor or

16 drugs.” (citation omitted)); UJI 14-4508 NMRA. Also, as set forth above, there was

17 plenty of other evidence of Defendant’s intoxication, which included his refusal of

18 chemical testing. See Marquez, 2009-NMSC-055, ¶ 16, (noting that a jury can




                                               5
1 reasonably infer consciousness of guilt from defendant’s refusal to submit to a breath

2 test).

3   {9}    For the reasons stated above and in our notice, we affirm Defendant’s

4 conviction for aggravated DWI.

5   {10}   IT IS SO ORDERED.


6                                         ____________________________________
7                                         MICHAEL E. VIGIL, Judge


8 WE CONCUR:



 9 ____________________________________
10 J. MILES HANISEE, Judge



11 ___________________________________
12 HENRY M. BOHNHOFF, Judge




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