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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-36954


 5 JOHN JARAMILLO,

 6                  Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Benjamin S. Chavez, District Court Judge

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

11 for Appellee

12 Josephine H. Ford
13 Albuquerque, NM

14 for Appellant

15                                 MEMORANDUM OPINION


16 HANISEE, Judge.

17   {1}    Defendant appeals from convictions for aggravated DWI, failure to maintain

18 lane, and improper right turn. We previously issued a notice of proposed summary
 1 disposition in which we proposed to uphold the convictions. Defendant has filed a

 2 memorandum in opposition. After due consideration, we remain unpersuaded. We

 3 therefore affirm.

 4   {2}   Defendant has raised two issues, contending that the district court erred in

 5 failing to grant a mistrial, and challenging the sufficiency of the evidence. Relative to

 6 these issues, we previously set forth the relevant background information and

 7 principles in the notice of proposed summary disposition. We will avoid undue

 8 reiteration here, focusing instead on the content of the memorandum in opposition.

 9   {3}   With respect to the motion for mistrial, Defendant continues to argue that the

10 prosecutor’s comments concerning his failure to cooperate with the investigation and

11 his concomitant refusal to “prove himself innocent” shifted the burden of proof from

12 the State to himself, in derogation of his constitutional rights to due process and a fair

13 trial. [MIO 2] Defendant further argues that neither the curative instruction that was

14 given by the trial court nor the prosecutor’s clarifying remarks should be said to have

15 rectified the impropriety. [MIO 3-6] As we explained in our proposed summary

16 disposition, we review such claims based upon our application of three factors set

17 forth in State v. Sosa, 2009-NMSC-056, ¶ 26, 223 P.3d 348. We remain unpersuaded

18 by Defendant’s argument, and briefly explain.




                                               2
 1   {4}   First, to the extent the prosecutor’s latter comment inverted Defendant’s right

 2 to be presumed innocent until proven guilty beyond a reasonable doubt, we have

 3 acknowledged its impropriety. [CN 3] See State v. Yancey, 2017-NMCA-090, ¶ 20,

 4 406 P.3d 1050 (observing that the right to be presumed innocent until proven guilty

 5 beyond a reasonable doubt is among the litany of procedural and substantive rights

 6 secured and safeguarded by the United States and New Mexico Constitutions).

 7 However, our review of the record indicates the broader permissible context in which

 8 that statement was made, which went to the prosecutor’s invitation to the jury to infer

 9 consciousness of guilt from Defendant’s refusal to submit either to field sobriety

10 testing or to breath testing. See State v. Marquez, 2009-NMSC-055, ¶ 16, 147 N.M.

11 386, 223 P.3d 931 (observing that a jury may infer consciousness of guilt from a

12 defendant’s refusal to submit to breath alcohol testing), overruled on other grounds

13 by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; State v. Sanchez,

14 2001-NMCA-109, ¶ 9, 131 N.M. 355, 36 P.3d 446 (“The State can use evidence of

15 a driver’s refusal to consent to the field sobriety testing to create an inference of the

16 driver’s consciousness of guilt.”); State v. Storey, 2018-NMCA-009, ¶ 40, 410 P.3d

17 256 (“New Mexico courts repeatedly have relied on evidence of refusal to consent to

18 breath and blood alcohol tests to support convictions for driving while under the

19 influence of alcohol.”). Although Defendant has indicated that he “disagrees” with this



                                               3
 1 line of authority, [MIO 4] he articulates no basis for his disagreement, apart from

 2 suggesting that it sanctions a non-specific “constitutional violation” [MIO 5] and

 3 citing dated authority addressing prosecutorial misconduct and harmless error in

 4 entirely unrelated situations. [MIO 5-6] Under the circumstances, we decline to depart

 5 from precedent. See State v. Riley, 2010-NMSC-005, ¶ 40, 147 N.M. 557, 226 P.3d

 6 656, (Chávez, J., specially concurring) (explaining that stare decisis prevents this

 7 Court from overruling precedent where the parties have not briefed and specifically

 8 argued the relevant factors to be considered before overturning our precedent),

 9 overruled on other grounds by State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

10 Accordingly, we conclude that the prosecutor’s broader argument, inviting the jury

11 to draw an inference of consciousness of guilt from Defendant’s refusal to participate

12 in field sobriety and breath alcohol testing was permissible. See Marquez,

13 2009-NMSC-055, ¶ 12; Sanchez, 2001-NMCA-109, ¶ 9; State v. Herrera,

14 1972-NMCA-068, ¶ 8, 84 N.M. 46, 499 P.2d 364 (“Statements having their basis in

15 the evidence, together with reasonable inferences to be drawn therefrom, are

16 permissible and do not warrant reversal.” (internal quotation marks and citation

17 omitted)). Our assessment of the first Sosa factor—whether the challenged “statement

18 invades some distinct constitutional protection”—is therefore mixed. Sosa, 2008-

19 NMSC-056, ¶ 23.



                                             4
 1   {5}   Turning to the second and third factors, we first note that the objectionable

 2 comment was brief and isolated. [MIO 3] This weighs against Defendant’s assertion

 3 of error. See Sosa, 2009-NMSC-056, ¶ 31 (“[O]ur appellate courts have consistently

 4 upheld convictions where a prosecutor’s impermissible comments are brief or

 5 isolated.”); State v. Brown, 1997-NMSC-029, ¶ 23, 123 N.M. 413, 941 P.2d 494 (“The

 6 general rule is that an isolated comment made during closing argument is not

 7 sufficient to warrant reversal.”). However, we find no indication that the specifically

 8 challenged comment was “invited by the defense.” [MIO 3] See Sosa,

 9 2009-NMSC-056, ¶ 31. This lends further support to Defendant’s position. In

10 summary, the various Sosa factors yield a roughly balanced result.

11   {6}   But Sosa is further instructive: “These three factors are useful guides, but in the

12 final analysis context is paramount.” Id. ¶ 34. As previously stated, in context, the

13 prosecutor’s comment invited both a permissible and an impermissible inference.

14 Moreover, the impermissible inference (i.e., that Defendant bore the burden of proving

15 his own innocence) was promptly, clearly, and repeatedly corrected by both counsel

16 and the court. [MIO 1, 4] See Brown, 1997-NMSC-029, ¶ 23, 123 N.M. 413, 941 P.2d

17 494 (observing that where an improper statement is corrected by counsel or the court,

18 a mistrial is not likely to be required). Although Defendant suggests that the district

19 court should have supplied greater clarity, [MIO 3-4] we disagree. The instruction



                                                5
 1 given, that Defendant did not bear the burden of proving his own innocence, and that

 2 it is always the State’s burden to prove guilt beyond a reasonable doubt, [MIO 1] was

 3 very clear. And as described at greater length below, the evidence of guilt was

 4 compelling. See id. (“Where evidence of guilt is overwhelming . . . reversible error is

 5 less likely.”). Under the circumstances, we conclude that the prosecutor’s comment

 6 could not be said to have materially altered the trial or provoked jury confusion,

 7 depriving Defendant of a fair trial. See id. (describing these as ultimate considerations

 8 in this context). We therefore hold that the district court did not abuse its discretion

 9 in denying Defendant’s motion for mistrial.

10   {7}   Finally, we turn to Defendant’s challenge to the sufficiency of the evidence to

11 support his conviction for aggravated DWI. The officer observed Defendant driving

12 in two lanes of traffic and making an erratic turn. [DS 1-2] Defendant’s speech was

13 slurred and his breath smelled of alcohol, [DS 3] Defendant swayed noticeably, [DS

14 4] and he refused to submit to field sobriety or breath-alcohol testing. [DS 5; MIO 4]

15 This supplies ample support for the verdict. See, e.g., State v. Marquez,

16 2008-NMCA-133, ¶¶ 15-18, 145 N.M. 31, 193 P.3d 578 (holding that the evidence

17 was sufficient to support a finding that the defendant was impaired by alcohol to the

18 slightest degree where he was observed driving erratically, he smelled of alcohol, he

19 had bloodshot, watery eyes and slurred his speech, he was slow to respond and braced



                                               6
 1 himself on his vehicle for balance, he performed field sobriety tests poorly and he

 2 repeatedly refused to take a breath alcohol test, supporting an inference of

 3 consciousness of guilt), rev’d on other grounds, 2009-NMSC-055, 147 N.M. 386, 223

 4 P.3d 931; State v. Soto, 2007-NMCA-077, ¶ 34, 142 N.M. 32, 162 P.3d 187

 5 (upholding a conviction where the defendant had bloodshot watery eyes, smelled of

 6 alcohol, and slurred speech, and refused to submit to chemical testing), overruled on

 7 other grounds by Tollardo, 2012-NMSC-008; State v. Neal, 2008-NMCA-008, ¶ 29,

 8 143 N.M. 341, 176 P.3d 330 (affirming a DWI conviction based on evidence that the

 9 defendant veered over the shoulder line three times, smelled of alcohol, had bloodshot

10 watery eyes, admitted drinking, and failed to adequately perform field sobriety tests);

11 Sanchez, 2001-NMCA-109, ¶¶ 2-4, 15-17 (holding that evidence was sufficient to

12 support DWI conviction, notwithstanding the fact that the officer did not actually

13 observe impaired driving, where the defendant smelled of alcohol and had bloodshot,

14 watery eyes, he refused to consent to field sobriety and blood alcohol tests, and he

15 appeared to be intoxicated). Although Defendant contends that the various indicia of

16 intoxication could have been the product of other conditions and circumstances, [MIO

17 7-8] the jury was at liberty to find as it did.

18   {8}    Accordingly, for the reasons stated above and in the notice of proposed

19 summary disposition, we affirm.



                                                7
1   {9}   IT IS SO ORDERED.


2
3                             J. MILES HANISEE, Judge
4 WE CONCUR:


5
6 MICHAEL E. VIGIL, Judge


7
8 JENNIFER L. ATTREP, Judge




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