                                                              I attest to the accuracy and
                                                               integrity of this document
                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'05- 11:37:14 2017.03.08

Certiorari Denied, February 7, 2017, No. S-1-SC-36258

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-028

Filing Date: December 13, 2016

Docket No. 34,462 (consolidated with No. 34,469)

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DARLA BREGAR,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Matthew J. O’Gorman, Assistant Appellate Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

HANISEE, Judge.

{1}      New Mexico State Highway 217, in Bernalillo County, begins in Yrisarri, running
east a few miles before abruptly turning due north. From there the road tracks a straight line
alongside the Sandia mountain range. Bernalillo County Sheriff’s Office (BCSO) Deputy
Axel Plum was working a late shift patrolling Highway 217 on the night of December 1,

                                              1
2008, when he discovered a wrecked Jeep Cherokee by the side of the highway. Deputy
Plum found two people on the ground near the Jeep: Defendant Darla Bregar and Thomas
Spurlin. Bregar was on the driver’s side of the car, her body contorted into a position that
Deputy Plum would describe at trial as “grotesque.” Spurlin was deceased, his body lying
further from the Jeep on the passenger side. Bregar was taken to the hospital by ambulance
and survived.

{2}     Shortly before 5:00 a.m., BCSO Deputies Lawrence Tonna and Gilbert Garcia went
to the hospital to interview Bregar. Bregar admitted to driving the vehicle the night before,
although she did not remember the crash. Deputy Garcia arrested her and obtained a warrant
to have her blood drawn and tested. The result of the test showed that Bregar had a blood
alcohol concentration (BAC) of 0.09 at the time of the blood draw.1

{3}    A grand jury indicted Bregar, charging her with one count of vehicular homicide,
contrary to NMSA 1978, Section 66-8-101 (2004, amended 2016), and one count of per se
DWI, contrary to NMSA 1978, Section 66-8-102(C)(1) (2008, amended 2016). At trial,
Bregar testified that she did not remember the accident or whether she was driving the Jeep.
She maintained that at the time of the accident, she had been wearing a knee brace that
would have prevented her from operating a vehicle. Thus, Bregar’s defense was that Spurlin
was the driver, or at least that the State had failed to prove that Bregar had been driving
beyond a reasonable doubt. The jury returned guilty verdicts on both counts charged in the
indictment.

{4}     Bregar’s appeal of her conviction concerns the district court’s denial of her pretrial
motion to suppress her statements to Deputy Tonna at the hospital and its admission of
certain expert opinion testimony by Deputy Garcia.

MOTION TO SUPPRESS

{5}     Bregar’s argument in district court and on appeal is that her inculpatory hospital-bed
statements to the police officers were not voluntarily made, and therefore, their admission
into evidence at trial violated her constitutional right to due process of law under the
Fourteenth Amendment of the United States Constitution. See Colorado v. Connelly, 479
U.S. 157, 163 (1986). We apply a “totality of the circumstances” test to these claims, Aguilar
v. State, 1988-NMSC-004, ¶ 7, 106 N.M. 798, 751 P.2d 178 (internal quotation marks and
citations omitted), derived from the “three-phased process” set out in Justice Frankfurter’s
opinion for the United States Supreme Court in Culombe v. Connecticut, 367 U.S. 568, 603-
05 (1961).

               In the first phase, there is the business of finding the crude historical


       1
        An expert witness for the State at trial estimated that Bregar’s BAC would have been
around 0.19 at the time of the accident.

                                              2
        facts, the external, ‘phenomenological’ occurrences and events surrounding
        the confession. In other words, the court begins with a determination of what
        happened. We are not restricted to examining only those facts deemed
        dispositive by the trial court. . . . However, when faced with conflicting
        evidence, we will defer to the factual findings of the trial court, as long as
        those findings are supported by evidence in the record. . . .

                The second phase is a determination of how the accused reacted to the
        external facts. This is an admittedly imprecise effort to infer—or
        imaginatively recreate—the internal psychological response of the accused
        to the actions of law enforcement officials.

                The third phase is an evaluation of the legal significance of the way
        the accused reacted to the factual circumstances. This requires the application
        of the due process standards to the court’s perception of how the defendant
        reacted. We are not required to accept the trial court’s legal conclusion that
        the police officers did not act coercively.

State v. Cooper, 1997-NMSC-058, ¶¶ 26-28, 124 N.M. 277, 949 P.2d 660 (alteration,
internal quotation marks, and citations omitted).

{6}      A defendant’s right to seek exclusion of his or her statements to police on the basis
of whether the confessed statement was “voluntary” is legally grounded upon an established
principle that the use of “certain interrogation techniques, either in isolation or as applied to
the unique characteristics of a particular suspect, are so offensive to a civilized system of
justice that they must be condemned.” Connelly, 479 U.S. at 163 (internal quotation marks
and citation omitted). The right to exclude a defendant’s statement in state court is derived
from Section 1 of the Fourteenth Amendment, which provides that “no [s]tate shall deprive
any person of life, liberty, or property, without due process of law.” See Connelly, 479 U.S.
at 163.

{7}     Whether a statement to police officers is “involuntary” and therefore subject to
exclusion under the Fourteenth Amendment does not turn solely on whether the defendant
makes a statement of his own free will, however. For example, in Connelly, the defendant
confessed to committing a murder as a result of “command hallucinations . . . [that]
interfered with [the defendant’s] . . . ability to make free and rational choices.” Id. at 161
(internal quotation marks omitted). The Court noted that although “mental condition is surely
relevant to an individual’s susceptibility to police coercion, mere examination of the
confessant’s state of mind can never conclude the due process inquiry.” Id. at 165. Instead,
there must be some indication that coercive police misconduct brought about the confession.
Id.; see also Aguilar, 1988-NMSC-004, ¶ 20 (“[A d]efendant’s mental condition by itself
without coercive police conduct causally related to the confession is no basis for concluding
that the confession was not voluntarily given.”).


                                               3
{8}    The district court held a lengthy hearing on the motion to suppress. Four fact
witnesses testified for the State about the circumstances surrounding Bregar’s confession,
and Bregar called a fifth witness to testify as an expert in “general nursing” regarding
Bregar’s injuries and mental state at the time of the interview—i.e., explaining “how
[Bregar] reacted to the external facts.” Cooper, 1997-NMSC-058, ¶ 27 (internal quotation
marks and citation omitted). Bregar herself did not testify at the hearing on her motion to
suppress. Although the district court made relatively scant findings of fact, the witnesses’
testimony does not conflict in any significant material respect. We therefore summarize each
witness’s testimony before evaluating the voluntariness of Bregar’s statements.

{9}     The first witness at the suppression hearing was Deputy Plum, who testified that
Bregar was “nonresponsive” when he first saw her at the scene of the crash and that her
breathing sounded “distressed[.]” Deputy Plum immediately called for emergency medical
assistance, but did not attempt to reposition Bregar so that she could breathe more easily
because he was afraid that doing so would aggravate her other injuries.

{10} The second witness to testify at the suppression hearing was Emergency Medical
Technician Carol Morgan (EMT Morgan). EMT Morgan testified that she arrived at the
accident scene shortly after Deputy Plum called for medical assistance. Bregar was able to
tell Morgan her name, but “[i]t was hard to make out what [Bregar] was saying.” Morgan
smelled alcohol on Bregar’s breath and noted that Bregar was unable to observe events
around her or comply with simple requests. Bregar’s blood pressure was found to be within
“the norm for being involved in an accident.” Morgan and several other EMTs at the scene
strapped Bregar to a long spine board and put her in an ambulance.

{11} Hospital records show that Bregar had a broken jaw, several fractured ribs, seven
broken vertebra, and a “subarachnoid hemorrhage that had an overlying hematoma, which
means that she received a [blow] to her head, considered a traumatic injury.” Bruising, gas,
and fluids in and around Bregar’s lungs and chest wall would have made it difficult for her
to breathe. Bregar was receiving oxygen through a tube inserted into her nose.

{12} EMT Morgan also recalled that hospital personnel assessed Bregar’s mental capacity
using the “Glasgow Coma Scale ” (GCS). The GCS is a ubiquitous assessment of brain
trauma using a patient’s eye, verbal, and motor responses to instructions. Eye movements
are assessed on a scale of 1 to 4, verbal responses on a scale of 1 to 5, and motor responses
on a scale of 1 to 6. A GCS Score of 8 is comatose; 15 is considered “normal.” Hospital
records showed that Bregar’s GCS Score was 12 when she was admitted, but that by the next
day (it is unclear at what precise time this second assessment occurred), Bregar’s GCS Score
had reached 15.

{13} The third witness to testify at the hearing on Defendant’s motion to suppress was
Deputy Tonna. At the time of the crash, Deputies Tonna and Garcia were both members of
the BCSO Traffic Investigation Unit, and were dispatched to the scene to conduct an
accident investigation. Deputy Tonna was the lead investigator, gathering evidence and

                                             4
documenting the scene of the crash, while Deputy Garcia took photographs and other
measurements. Deputy Tonna noted that the damage to the Jeep was “consistent with it being
involved in a rollover.” He also observed a large bottle of Svedka vodka on the ground near
the vehicle, “completely clean[,] like it had just been placed there.” Deputy Tonna was told
by EMT Morgan that Bregar had a “strong odor of alcohol emanating from her breath, prior
to being transported to the hospital.”

{14} Before interviewing Bregar, Deputy Tonna learned that other officers had already
been dispatched to the hospital to conduct a DWI investigation, but had been turned away
by hospital staff because Bregar “was [still] actively being treated[.]” The interview did not
begin until 5:00 a.m., and was not recorded. Deputy Tonna described the interview as
follows:

       I started out by identifying ourselves. . . and then I asked [Bregar] if she
       knew where she was at. She said she was at the hospital. [I] then asked her
       what had happened with the crash, and at first she said that she didn’t wreck.
       Then, I asked her again where she had been this evening, and she stated that
       her and Anthony had gone to her friend’s, Myra’s house, in Tijeras, New
       Mexico, and that while there, they stayed for two hours and had a few beers.

       ....

       [T]hen I asked her to describe what type of vehicle she had or she drove. She
       said she had a ‘97 Jeep Cherokee. Then, I asked her what their plans were
       after leaving from Myra’s house, and she said that—her words were, “I was
       taking [Mr. Spurlin] home.” Then, I asked her if anybody else drives her
       vehicle, and she said nobody drives her vehicle. I think her words were, “I
       don’t let anybody drive my Jeep.”

       ....

       I asked her again how she came to the hospital, and she said she didn’t know,
       and that’s when I told her that she had been involved in a rollover crash and
       that Mr. Spurlin had passed away from his injuries. . . . She became very
       upset. She started to kind of become hysterical, started crying. . . . She said,
       “What? I was driving?” And she said, “But I never left home.”

{15} Deputy Tonna also testified about Bregar’s appearance and demeanor during the
interview. He said that Bregar’s “face was really swollen[,] I think she had bloodshot—red,
bloodshot, watery eyes, and I could smell a strong odor of alcohol coming from her.” Deputy
Tonna said that Bregar was slurring her words and “spoke slowly, but she answered the
questions.” He added that Bregar seemed “conscious and somewhat alert” during the
interview. When cross-examined, Deputy Tonna responded that he had no contact with
medical personnel regarding Bregar’s state of mind or condition and was unaware of

                                              5
Bregar’s injuries beyond what he had learned from EMT Morgan. The interview of Bregar
took about ten minutes. At its conclusion, Deputy Garcia notified Bregar that she was under
arrest.2

{16} Deputy Garcia was the final State’s witness to testify. His testimony as to what
Bregar said in response to Deputy Tonna’s questions largely mirrored Deputy Tonna’s own
testimony, so we will not summarize that aspect of Deputy Garcia’s account here. Deputy
Garcia did provide some further detail as to Bregar’s demeanor: Deputy Garcia described
Bregar as “awake,” “coherent,” and observed that “she didn’t have any problem answering”
Deputy Tonna’s preliminary questions about her name, address, and other identifying details.
Deputy Garcia testified that after Deputy Tonna told her that Spurlin had died, her demeanor
changed: “[a]fter [being told of Spurlin’s death], she started telling us that she didn’t know
where she was[.]”

{17} Defendant’s only witness at the suppression hearing was Michele Wilkie, a nurse
called by the defense to testify as an expert. Wilkie’s opinion testimony was based on her
review of police reports and hospital records. Wilkie opined that Bregar would have been
“disoriented” at the time she was interviewed by Deputy Tonna. Wilkie also opined that the
lingering effects of alcohol and pain medication would have added to her confusion and
lethargic behavior, which in Wilkie’s opinion explained why Bregar appeared unresponsive
to hospital personnel. Wilkie added that she would not have let Bregar speak with police
because she would have been “concern[ed] . . . that she was not stable enough, medically or
psychologically, to answer questions regarding the accident.” Wilkie believed that any
statements Bregar made to the police would be unreliable because “[s]he really didn’t know
what had happened to her.”

{18} The district court denied the motion to suppress, concluding that “[Bregar’s]
statement was voluntary and not coerced. The testimony by the officers was credible. The
description of the conversation made sense. Her statements were coherent. Her responses
were appropriate to the questions asked by the officers.”

DISCUSSION

{19} On appeal, Bregar makes three related arguments to support her contention that her
pre-arrest hospital-bed statements to Deputy Tonna were involuntary. First, Bregar asserts
that Deputy Tonna’s failure to make an audio recording of the interrogation means that the
State failed to carry its burden of proving that her statements were voluntary. See Cooper,
1997-NMSC-058, ¶ 30 (“The [state] bears the burden of proving by a preponderance of the
evidence that a defendant’s statement was voluntary.”). But Bregar did not preserve this


       2
        The district court ordered that Bregar’s post-arrest statements be suppressed because
Bregar was not given a Miranda warning when she was arrested. The State has not appealed
that order.

                                              6
argument for appellate review by making it to the district court. See Rule 12-216(A) NMRA
(“To preserve a question for review it must appear that a ruling or decision by the district
court was fairly invoked[.]”); see also State v. Vandenberg, 2003-NMSC-030, ¶ 52, 134
N.M. 566, 81 P.3d 19 (“In analyzing preservation, [the appellate courts] look to the
arguments made by [the d]efendant below.”). Bregar’s motion to suppress states that “the
State has deprived [the district c]ourt of the ability to listen to the actual interview Deputy
Tonna conducted with [Bregar] and to review de novo whether the deputy overreached[.]”
But this is an argument that the district court should not credit Deputy Tonna’s recollection
of the interrogation because he did not record it with his belt tape. The district court rejected
this argument, finding instead that Deputy Tonna’s testimony as to what happened was
credible. Faced with the district court’s decision to accept the police officer’s undisputed
account of what happened (we note again that Bregar herself did not testify at the hearing)
and the fact that we review the district court’s assessment of exactly what happened with
substantial deference, Cooper, 1997-NMSC-058, ¶ 26, Bregar now argues an entirely
different proposition on appeal: that as a matter of law, the State’s failure to submit into
evidence an audio recording of an interrogation means that the State cannot satisfy its burden
of proving that a statement was made voluntarily. We decline to address Bregar’s first
argument because she did not make it below.

{20} Bregar’s second argument is that Nurse Wilkie’s testimony at the suppression hearing
established that “Bregar [was] susceptible to confusion[, and t]his type of diminished
capacity is recognized throughout voluntariness case law.” To the extent that Bregar is
arguing that her susceptibility alone rendered her hospital-bed admissions involuntary,
Bregar again did not preserve the argument by making it below. Even if she had preserved
it, Connelly rejected an indistinguishable argument when it held that inculpatory statements
made as a result of a mental or physical condition are not sufficient to render the statements
involuntary in the absence of a causal relationship between the physical or mental condition
and police misconduct. See 479 U.S. at 165 (stating that “mere examination of the
confessant’s state of mind can never conclude the due process inquiry”). Instead, what
Bregar must show is that Deputy Tonna obtained Bregar’s admission using “intimidation,
coercion, deception, assurances, or other police misconduct that constitutes overreaching.”
State v. Munoz, 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847 (internal quotation
marks and citation omitted).

{21} Bregar’s final argument is that because Deputy Tonna was at the very least aware
that Bregar was under the influence of alcohol at the time he asked her questions, his
questioning amounted to “deception and manipulation of a known impairment” and thus
requires us to reverse the district court’s determination that Deputy Tonna did not use
coercion to obtain Bregar’s admission. We disagree. Initially, we note that Nurse Wilkie’s
testimony was far from unequivocal about whether the medical records established that
Bregar was susceptible to coercion. While she testified that a subarachnoid hemorrhage and
lingering influence of alcohol and pain medication would have caused Bregar to feel
disoriented, confused, and lethargic, Wilkie also noted that Bregar was scoring a 15 on the
GCS (i.e., a normal level of consciousness) by the next day. Deputy Tonna and Deputy

                                               7
Garcia’s testimony that Bregar seemed responsive and aware of the circumstances during
their interview—which the district court credited—supports a finding that Bregar was lucid
and not otherwise specifically susceptible to coercion. The deputies testified that Bregar told
them she knew she was in the hospital, that she “spoke slowly, but . . . answered the
questions[,]” and seemed “conscious and somewhat alert” during the interview.
Significantly, Bregar immediately retracted her admission and denied being the driver when
she was informed that Spurlin had died as a result of the accident. The fact that Bregar
changed her story and denied driving when she found out that Spurlin had died suggests that
Bregar was not suffering from a diminished capacity at the time of her admissions. In other
words, this evidence suggests that Bregar was aware that a police officer was asking her
questions and that her answers to those questions could implicate her in the commission of
a crime. See id. ¶ 21 (“[I]f [a] confession is the product of an essentially free and
unconstrained choice by its maker, that is if [s]he has willed to confess, it may be used
against [her].” (internal quotation marks and citation omitted)).

{22} But even if Bregar had demonstrated some susceptibility to coercive police
interrogation techniques, Bregar would need to point to coercive conduct by the police that
caused her to admit to being the driver. See id. ¶ 23. Here, the district court record does not
support such a contention. In this regard, we note Deputy Tonna had no contact with medical
personnel regarding Bregar’s state of mind or condition and was unaware of Bregar’s
injuries beyond what he had learned from EMT Morgan. While he had been made aware that
hospital personnel would not allow Bregar to be interviewed while being actively treated,
nothing in the record suggests that Bregar’s treatment was ongoing when Deputy Tonna
spoke with her. Thus, there is no direct evidence that Deputy Tonna knew of any specific
condition from which Bregar suffered and sought to exploit it by questioning her.

{23} The circumstantial evidence supports a similar conclusion. First, Deputy Tonna’s
conversation with Bregar was less than 10 minutes long, so there is no indication that Deputy
Tonna deliberately prolonged the encounter with the hope of overcoming Bregar’s resistance
to questioning. See id. ¶¶ 35-36 (rejecting argument that a 100-minute-long interrogation “in
conjunction with other factors” rendered a confession involuntary and citing other cases
where confessions during even longer periods of questioning were found to be voluntarily
made); see also State v. LaCouture, 2009-NMCA-071, ¶¶ 13-14, 146 N.M. 649, 213 P.3d
799 (finding admissions made during seven-minute hospital-bed interview voluntary).
Deputy Tonna’s open-ended questions to Bregar asking her to describe the vehicle she
drives, what she was doing the previous night, and her interaction with Spurlin did not
suggest answers or otherwise pressure Bregar to admit that she was the driver. Cf. State v.
Rettenberger, 1999 UT 80, ¶ 40, 984 P.2d 1009 (finding a confession involuntary where,
among other facts, the defendant’s “confession contain[ed] little information that was not
first provided or suggested by the interrogating officers”). Nor is there any indication that
Bregar was restrained or isolated by police during her interrogation: any immobility was
incidental to her hospitalization for injuries suffered during the accident, not a police effort
to coerce statements by isolating the defendant. See State v. Maestas, 2012 UT App 53, ¶ 33,
272 P.3d 769 (“[The] Officer . . . did not cause [the d]efendant to be isolated from his friends

                                               8
and family or to be connected to medical equipment. Hospital policy and medical treatment,
not police tactics, caused [the d]efendant’s isolation and lack of mobility[.]”).

{24} In LaCouture, we evaluated a factually similar hospital-bed admission and ultimately
concluded that it was not an involuntary confession under the Fourteenth Amendment.
There, the defendant admitted to taking methamphetamine earlier that day and had suffered
injuries from a car accident, including “damage to his hip and spine, broken ribs, fractured
leg bones (both tibia and fibula), and internal bruising.” 2009-NMCA-071, ¶¶ 4, 12. We held
that the defendant’s statements were voluntary because “[d]espite these injuries, [the
defendant] was able to respond coherently” to the police officer’s questions, and there was
no indication that the police officers had “threaten[ed him], promise[d] special treatment in
return for [his] cooperation, physically abuse[d him], or engage[d] in coercion of any type.”
Id. ¶¶ 12-13. We further noted that the questions the officer asked “were benign, revolving
around the facts of the accident.” Id. ¶ 13.

{25} Both Bregar and the defendant in LaCouture suffered injuries from a car accident,
were under the influence of mind-altering substances, and were confined to a hospital bed
at the time of questioning by police officers. Bregar emphasizes that unlike the defendant in
LaCouture, Bregar suffered a traumatic brain injury as a result of the accident. But as we
have already noted, Deputy Tonna did not know of this injury; he cannot have intended to
take advantage of an injury that he did not know Bregar had suffered. Bregar asserts that
Deputy Tonna failed to “ascertain . . . Bregar understood what was going on” before asking
her questions. But she does not explain why Deputy Tonna’s preliminary questioning of
Bregar to ascertain that she knew where she was and Deputy Garcia’s testimony that she
seemed “awake” and “coherent,” and “didn’t have any problem answering” Deputy Tonna’s
questions is a legally significant distinction from the officer in LaCouture asking the
defendant if he “understood” the questions he was being asked. 2009-NMCA-071, ¶¶ 12, 18.
In any event, while a police officer’s subjective knowledge of an infirmity may be probative
of a finding that the officer sought to exploit it through coercive police tactics, Bregar does
not explain why an absence of such knowledge is the same. See Maestas, 2012 UT App 53,
¶ 40 (“A police officer is not routinely required to inquire into a defendant’s medical
condition prior to questioning him. . . . This is especially true of those injured in auto
accidents, with which most police officers will have extensive experience and a meaningful
frame of reference, and thus less need to seek guidance about the effects of trauma.”
(citations omitted)). To the extent that Bregar is arguing that officers have an affirmative
duty to ascertain an interviewee’s medical condition prior to asking questions, the argument
was NOT preserved below, so we have no need to grapple with the practical ramifications
of such a rule or how it might affect the outcome of this appeal. See id. ¶ 40 n.8 (noting that
“[a]pplicable patient privacy laws and hospital privacy regulations may well have prevented
hospital personnel from sharing” information about a patient’s injuries with an investigating
officer). Applying Cooper’s three-phase totality-of-the-circumstances test, we conclude that
Bregar’s admission to Deputy Tonna was not the result of coercion and so is not subject to
suppression under the Due Process Clause of the Fourteenth Amendment. Accordingly, we
affirm the district court’s denial of Bregar’s motion to suppress those statements.

                                              9
The District Court’s Admission of Deputy Garcia’s Opinion Testimony

{26} At trial, the district court permitted Deputy Garcia (the same Deputy Garcia who
photographed and measured the accident scene and who accompanied Deputy Tonna when
Bregar was interviewed at the hospital) to separately testify as an expert in accident
reconstruction. In that capacity, Deputy Garcia informed the jury of his opinion that Bregar
was driving the Jeep when it crashed. This opinion was based on several inferences and
assumptions that we summarize here before addressing Bregar’s argument that the opinion
should have been excluded. First, Deputy Garcia considered the location of “yaw” marks on
Highway 217 where the Jeep left the road and tumbled down a 3- to 5-foot embankment.
Deputy Garcia found “trip” marks where the front left tire of the Jeep caught the dirt on the
embankment as it rolled. Based on the “yaw” and “trip” marks and damage to the tires on
the left-hand side of the Jeep, Deputy Garcia concluded that as the Jeep left the road it rolled
over twice on the driver’s side before coming to a rest. Spurlin’s body was found on the
passenger side of the Jeep about 15 feet away, and Bregar was found on the driver’s side of
the Jeep, closer to it. Important to Deputy Garcia’s assessment, the only window of the Jeep
that had been broken during the rollover was that on the front passenger side, so Deputy
Garcia reasoned that both Bregar and Spurlin were ejected from the Jeep through the same
window.

{27} From this, Deputy Garcia posited that Bregar was the driver because Spurlin was
closer to where the Jeep rolled over the first time, while Bregar was found closer to where
the Jeep came to rest on the driver’s side. Asked how Bregar ended up on the driver’s side
of the Jeep when it was his opinion that she was ejected from the passenger window, Deputy
Garcia explained that “when [Bregar was] getting ejected . . . [the] vehicle [was] tossing her
body towards the direction it’s rolling.” On cross-examination, Deputy Garcia agreed with
Bregar’s attorney that if Bregar had indeed been thrown from the passenger-side window,
his opinion required him to “assume” that Bregar had flown over the car in order to land on
the driver’s side of the Jeep.

DISCUSSION

{28} Bregar makes three arguments on appeal: (1) the district court abused its discretion
when it found that Deputy Garcia was qualified under Rule 11-702 NMRA to offer an expert
opinion about “occupant kinematics”; (2) Deputy Garcia’s opinion “was based on personal
opinion rather than a well-recognized scientific principle”; and (3) Deputy Garcia “was
unaware of the predicate facts necessary to make his opinion relevant.” We must first sort
out our standard of review in this instance, which depends upon whether these issues were
raised below or are newly raised to this Court. To this end, if an evidentiary issue is
preserved by objection, we review the district court’s decision to admit or exclude evidence
for an abuse of discretion, which means the decision was “clearly against the logic and effect
of the facts and circumstances of the case.” State v. Loza, 2016-NMCA-088, ¶ 10, 382 P.3d
963 (internal quotation marks and citation omitted). If an appellant fails to object to the
admission of evidence below, on appeal we will only review for plain error: that is, an error

                                              10
that “affect[s] a substantial right[.]” Rule 11-103(E) NMRA.

{29} Bregar concedes that her second and third arguments were not preserved and
therefore subject to review for plain error, but argues that her first argument was preserved
and therefore subject to review for an abuse of discretion. We disagree. Bregar’s attorney
made the following objections to Deputy Garcia’s qualification to testify as an expert: his
testimony to the jury (beyond offering his own personal observations at the accident scene)
would not be helpful because the “car . . . lost control, went off the road, went into the ditch,
and rolled”; his opinion that both occupants of the Jeep were ejected from the front
passenger window was a “legal conclusion[ and] a question for the jury”; and his testimony
as to which Jeep occupant was in which seat, and who was ejected first, was based on
“[f]acts not in evidence at this point.” Stated simply, it is difficult to point to anything within
the objections made that appears to challenge Deputy Garcia’s qualification to present expert
testimony or the methodology by which his opinion was formed. As we have stated, for an
objection to preserve an issue for appeal, “it must appear that [the] appellant fairly invoked
a ruling of the [district] court on the same grounds argued in the appellate court.” Woolwine
v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717. We require parties to
preserve their arguments by making them in the district court, in part, in order to

        (1) . . . specifically alert the district court to a claim of error so that any
        mistake can be corrected at that time, (2) to allow the opposing party a fair
        opportunity to respond to the claim of error and to show why the court should
        rule against that claim, and (3) to create a record sufficient to allow this
        Court to make an informed decision regarding the contested issue.

Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853,
215 P.3d 791. Notably, Bregar’s district court challenge to Deputy Garcia’s expert
qualifications lacked any reference to “occupant kinematics” and this specific aspect of
accident reconstruction was only addressed for the first time on appeal. The district
court—presented instead with evidence that Deputy Garcia was trained and certified in
accident reconstruction, had investigated nearly 500 crashes including 100 involving
fatalities, and had been qualified as an expert witness in accident reconstruction—was
therefore unable to correct any error in qualifying Deputy Garcia as an expert (if indeed it
was error) that Bregar now specifically focuses on for the first time on appeal. Moreover,
the State was prevented from responding below to the specific challenge now raised and we
are denied the opportunity to examine a meaningfully developed record. Accordingly, the
question of Deputy Garcia’s qualifications to testify in accident reconstruction from the
standpoint of occupant kinematics was not preserved.3


        3
         We note that the State informed the district court that it would ask Deputy Garcia
about the origin and movements of Spurlin and Bregar’s bodies before and during the crash
at the very end of the colloquy on Deputy Garcia’s qualifications after the trial court had
already found that he would be permitted to offer expert testimony about his reconstruction

                                                11
{30} Having determined that all of Bregar’s arguments are subject to review for plain
error, we shall address the remainder of our analysis separately. First, we discuss whether
any one of the three arguments Bregar makes on appeal shows that the district court erred.
Second, we discuss whether the error was plain; in other words, whether any of the errors
raise sufficiently “grave” concerns about the validity of the jury’s guilty verdict that we must
reverse it despite Bregar’s failure to adequately object to Deputy Garcia’s expert testimony
below. State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056.

{31} Rule 11-702 NMRA, which governs the admissibility of expert opinion testimony,
provides:

                A witness who is qualified as an expert by knowledge, skill,
        experience, training, or education may testify in the form of an opinion or
        otherwise if the expert’s scientific, technical, or other specialized knowledge
        will help the trier of fact to understand the evidence or to determine a fact in
        issue.

The proponent of expert testimony under Rule 11-702 must show “(1) the witness . . .
[qualifies] as an expert; (2) the specialized testimony [will] assist the trier of fact; and (3) the
expert witness testimony [will] be limited to scientific, technical, or other specialized
knowledge in which the witness is qualified.” Andrews v. U.S. Steel Corp., 2011-NMCA-
032, ¶ 11, 149 N.M. 461, 250 P.3d 887 (citing State v. Alberico, 1993-NMSC-047, ¶¶ 43-45,
116 N.M. 156, 861 P.2d 192).

{32} When expert witness testimony involves scientific knowledge, as the parties do not
dispute to be the case here, “the proponent of the testimony must establish the reliability of
the science and methodology on which it is based.” Andrews, 2011-NMCA-032, ¶ 13. “[I]t
is error [for the district court] to admit expert testimony involving scientific knowledge
unless the party offering such testimony first establishes the evidentiary reliability of the
scientific knowledge.” State v. Torres, 1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20.
Whether scientific knowledge is reliable in turn requires an inquiry into whether the
knowledge is derived from “established scientific principles or methods.” Andrews, 2011-
NMCA-032, ¶ 13. New Mexico courts apply a non-exhaustive “list of factors” for answering
this question:




of the accident. No objection was made by Bregar’s attorney at the time, although we note
that our rules of preservation do not apply where “a party has no opportunity to object to a
ruling or order at the time it is made[.]” Rule 12-216(A) NMRA. But Bregar does not argue
this basis for preservation on appeal, and our review of the record indicates that her trial
counsel had numerous opportunities to object to Deputy Garcia’s qualification to testify to
his opinion that Bregar was the driver based on the movement and position of bodies during
and following the crash, but did not.

                                                12
        (1) whether the theory or technique can be, and has been, tested; (2) whether
        the theory or technique has been subjected to peer review and publication; (3)
        the known potential rate of error in using a particular scientific technique and
        the existence and maintenance of standards controlling the technique's
        operation; (4) whether the theory or technique has been generally accepted
        in the particular scientific field; and (5) whether the scientific technique is
        based upon well-recognized scientific principle and whether it is capable of
        supporting opinions based upon reasonable probability rather than
        conjecture.

Id. ¶ 14.

{33} As we have stated, Bregar first argues that “the district court erred in finding [Deputy
Garcia] qualified to give an opinion about ‘occupant kinematics’—i.e., the study of the
movement of bodies in an accident.” In essence, Bregar contends that “calculat[ing] a
person’s potential ejection from a vehicle during a rollover from the actual resting location
of the occupant . . . requires scientific or technical expertise” that Deputy Garcia did not
possess. This expertise, Bregar contends, consists of using “seven . . . equally dense physics
equations [to] get a basic idea of the number and timing of rolls over the entire distance of
the accident.” Bregar contends that additional equations are required to determine “the
passenger’s ejection trajectory at every moment of the car’s rollover.” Ultimately, Bregar
contends that “[t]his simplified ejection model does not generate a certain ejection point, but
rather multiple possible ejection points.” Nor does it account for accidents like the Jeep here
involving yaw: in that case, additional equations are required. See generally Chad B. Hovey
et al., Occupant Trajectory Model Using Case-Specific Accident Reconstruction Data for
Vehicle Position, Roll, and Yaw, from Society of Automotive Engineers Technical Paper
Series,         #2008-01-0517                  (SAE        Int.,       April         2008),
http://www.hoveyconsulting.com/pdf/Hovey%202008%20Occupant%20Trajectory.pdf.
Because Deputy Garcia did not apply these principles in reaching his conclusion that Bregar
was driving the Jeep, Bregar contends that the district court abused its discretion in allowing
him to so testify.

{34} The problem with this argument is that it fails to address the question of whether
Deputy Garcia’s opinion was itself based on a reliable scientific methodology. See Andrews,
2011-NMCA-032, ¶¶ 13-14. Even if one method (here, occupant kinematics) is the “gold
standard” in a field, that does not preclude the use of scientific methods that otherwise meet
the baseline reliability criteria of Rule 11-702. Hyman & Armstrong, P.S.C. v. Gunderson,
279 S.W.3d 93, 105 (Ky. 2008); see also Chapin v. A & L Parts, Inc., 732 N.W.2d 578, 587
(Mich. Ct. App. 2007) (“The only proper role of a trial court [in evaluating the admissibility
of expert testimony] is to filter out expert evidence that is unreliable, not to admit only
evidence that is unassailable.”). As we have noted, Deputy Garcia was trained, certified, and
experienced in accident investigation and reconstruction, assigned to a team of deputies
tasked with investigating accidents, and had previously testified as an expert in accident
reconstruction. On the record before it, we cannot conclude that the district court committed

                                              13
plain error in deciding Deputy Garcia was qualified to testify as an expert in the general field
of accident reconstruction in this case.

{35} We think Bregar’s second argument—that is, her argument that Deputy Garcia’s
ultimate opinion was not the result of his expertise in accident reconstruction—is better
understood as an argument that the State did not satisfy its burden of showing that Deputy
Garcia’s opinion (that Bregar was ejected through the passenger window second and
therefore was the driver of the crashed Jeep) was the result of a reliable methodology.
Viewed this way, we agree with Bregar that the State failed to meet its burden as the
proponent of this testimony to establish that Deputy Garcia was qualified to offer this
opinion as an expert under Rule 11-702. Accordingly, had Bregar objected to Deputy
Garcia’s scientific methodology as to this determination, it would have been an abuse of
discretion to admit Deputy Garcia’s opinion that Bregar was the driver. See Andrews, 2011-
NMCA-032, ¶ 11 (noting that the proponent of expert witness testimony must prove that the
witness is qualified to offer an opinion based on application of scientific methodology).

{36} As we have explained above, the threshold question in determining the admissibility
of expert opinion testimony based on scientific knowledge is whether the proponent of such
testimony has shown that the knowledge or method in question is reliable. Id.; see also
Torres, 1999-NMSC-010, ¶ 24 (same). Here, we conclude the State failed to meet its burden.
To reiterate, the testimony that the State elicited from Deputy Garcia was that he had been
certified as an accident reconstruction expert by the Institute of Police Management, had
performed at least fifty reconstructions of “[f]atal[]” car accidents, and that he had been
“involved with” many more investigations into non-fatal car accidents. But this testimony,
standing alone, does not provide a basis for any meaningful evaluation of whether his
ultimate opinion—that Bregar was driving the Jeep—was a result of the application of a
reliable scientific method. The State needed to put forward some evidence or testimony that
revealed the content of his formal qualifications—i.e., what he was taught in accident
reconstruction class, what certification with the Institute of Police Management requires, and
what methods (mathematical or otherwise) he uses to reconstruct an accident—in order to
enable the district court to assess the reliability of these methods in producing the his
resulting opinion that Bregar was the driver of the crashed Jeep. Having failed to do so, the
district court abused its discretion by allowing Deputy Garcia to opine to the jury that Bregar
was driving the Jeep.

{37} To be sure, Deputy Garcia elaborated on his opinion when he testified before the jury
that Bregar was the driver because the passenger side window was the only window that
broke during the accident, so the first person to be thrown from the Jeep would have had to
have been in the passenger seat. Deputy Garcia explained that a rolling vehicle was like a
“merry-go-round[,]” in that “when you’re getting ejected out, you’re going the direction that
the vehicle is rolling over.” But neither this testimony nor anything else in the record
provides a basis for gauging the reliability of Deputy Garcia’s “merry-go-round”
methodology of extrapolating the position previously occupied by a person who is thrown
from a vehicle. See Rule 11-702. For all we can tell from the record, it is an ad-hoc theory

                                              14
that he had used only in this one case. Even viewing Deputy Garcia’s qualifications and
experience generously, there is no basis to find that his opinion in this regard was the result
of a reliable methodology, as Rule 11-702 requires. There is no evidence that his theory has
been tested, that it had been subjected to peer review and publication, whether it had a
known potential rate of error, whether the theory or technique has been generally accepted
in the particular scientific field, or whether the scientific technique is based upon
well-recognized scientific principle and whether it is capable of supporting opinions based
upon reasonable probability rather than conjecture. See Andrews, 2011-NMCA-032, ¶ 14.
The State cites State v. Vigil, 1985-NMCA-110, ¶¶ 12,14, 103 N.M. 643, 711 P.2d 920, as
holding that accident reconstruction expertise is reliable as a matter of law with respect to
opinions regarding body movements during accidents. But Vigil was decided when the
prevailing test for the admissibility of expert testimony was Frye v. United States, 293 F.
1013, 1014 (D.C. Cir.1923), which established the “general acceptance” test for the
admissibility of an expert opinion. Under Frye, the test for the admissibility of expert
opinion testimony based on scientific knowledge is whether the “scientific technique or
principle about which the expert proposes to testify . . . [is] accorded general scientific
recognition.” Alberico, 1997-NMSC-047, ¶ 39 (internal quotation marks and citation
omitted). The Frye test was subsequently rejected by the U.S. Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)(holding that the Frye test was
superceded by the adoption of the Federal Rules of Evidence), and our own Supreme Court
in Alberico, 1993-NMSC-047, ¶¶ 2, 97. As Alberico noted, the problem with this test is that
its “inherent vagueness . . . creates ambiguities as to the scope of the pertinent field or fields
to which the scientific technique belongs.” Id. ¶ 41. This case illustrates that concern.
Accident reconstruction may be a well-accepted method for determining the movement of
vehicles during a car accident, but that does not mean that every opinion offered by experts
in accident reconstruction is generally accepted (under Frye) or reliable (under our modern
Rule 11-702 test).

{38} Moreover, to the extent that Vigil remains good law after Daubert and Alberico’s
rejection of the Frye standard, we find it (and the other out-of-state cases cited by the State)
factually distinguishable. In Vigil, the district court specifically determined that the witness’s
expertise in the field of accident reconstruction “qualified [him] to determine the movement
of bodies within the vehicle.” 1985-NMCA-110, ¶¶ 12-14. Here, the district court never
made any finding that Deputy Garcia’s opinion regarding Bregar’s position fell within the
scope of his expertise in accident reconstruction. Indeed, after Deputy Garcia’s testimony
had concluded, the district court stated that “Deputy Garcia gave more opinions than [the
district judge] was anticipating, some of which I wasn’t comfortable with.” Moreover, the
expert in Vigil had testified as to his “training and knowledge of physics and engineering,”
which the court found sufficient to put the expert’s testimony within the trial court’s “broad”
discretion in determining its admissibility. Id. ¶ 16. Here, although Deputy Garcia testified
that he was certified as an accident reconstruction expert and had taken an accident
reconstruction course, the State did not elicit any testimony from Deputy Garcia to elaborate
on what these formal qualifications entailed. In other words, even if it is within the discretion
of a district court to conclude that training in and knowledge of physics and engineering is

                                               15
sufficient to make a witness competent to testify about the movement of bodies during a car
accident, the total lack of evidence that Deputy Garcia had such training precluded the
district court in this case from allowing his expert testimony to be presented to the jury.
Accordingly, it was error for the district court to allow Deputy Garcia to testify as an expert
that in his opinion Bregar was the driver under Rule 11-702. We therefore do not separately
address Bregar’s third argument that the admission of this testimony was in error, and
proceed to analyze whether the admission of Deputy Garcia’s expert testimony satisfies our
plain error standard of review.

{39} As we have noted above, our Supreme Court has stated that the standard of review
for plain error is whether the erroneous admission of evidence creates “grave doubts
concerning the validity of the verdict.” Montoya, 2015-NMSC-010, ¶ 46 (internal quotation
marks and citation omitted). Our Supreme Court has elsewhere characterized the standard
of review for plain error as involving some determination of whether “there has been a
miscarriage of justice or a conviction in which the defendant’s guilt is so doubtful that it
would shock the conscience of the court to allow it to stand.” State v. Lucero, 1993-NMSC-
064, ¶ 13, 116 N.M. 450, 863 P.2d 1071.

{40} In Lucero, an expert witness for the State diagnosed the alleged victim of the
defendant’s child abuse with post-traumatic stress disorder (PTSD), opined that the
complainant’s symptoms were “consistent with those in children who have been sexually
abused[,]” and that “the cause of the complainant’s PTS[D] was the sexual molestation that
she had been undergoing.” Id. ¶ 4. The expert also “recounted several statements regarding
sex abuse that the complainant had made to her during her evaluation to the effect that her
uncle had ‘done it to her.’ ” Id. ¶ 5. Finally, the expert witness

       commented directly on the complainant’s credibility. For example, she
       testified that the complainant ‘was consistent in saying that it was her uncle’
       and was consistent in referring to the rooms in which she was subjected to
       sexual abuse. [The expert] also commented on the complainant’s demeanor,
       which she said changed when talking about the sex abuse that she endured.
       She stated that if the complainant were not telling the truth, she probably
       would have reacted differently than she did.

Id. ¶ 6. Our Supreme Court found that it was plain error to admit this testimony for three
reasons. First, the witness “comment[ed] directly [on] the credibility of the complainant[,]”
id. ¶ 15; second, by naming the defendant as the victim’s abuser, the expert’s testimony “was
tantamount to saying that the complainant was telling the truth[,]” id. ¶ 16; and third, the
expert’s testimony amounted to a direct statement that the complainant’s “PTSD symptoms
were in fact caused by sexual abuse.” Id. ¶ 17. These errors, the Court found, were plain
because they affected “ ‘substantial rights although the plain errors were not brought to the
attention of the judge.’ ” Id. ¶ 13 (alteration omitted) (quoting Rule 11-103(D) (1993),
currently Rule 11-103(E)).


                                              16
{41} In Montoya, the expert witness was a pathologist who had conducted an autopsy on
the body of a baby whom the defendant had allegedly killed. The expert

       opined that the injuries to [the victim’s] ears were intentional, caused by
       someone grabbing and pulling them, and could not have been caused by the
       [victim] herself. [The expert] saw between forty and fifty bruises on [the
       victim’s] back, chest, and abdomen. The [victim] also had subdural and
       subarachnoid hemorrhages on both sides of the brain, indicative of significant
       head trauma. [The expert] said these types of injuries were unlikely to be
       caused by a fall in a bathtub. [The expert] also found significant internal
       abdominal injuries, which she characterized as classic intentional injuries
       found in children who were punched or kicked in the stomach.

       [The expert] said that [the victim’s] death was the result of multiple blunt
       force injuries. [The expert] concluded that the constellation of injuries on [the
       victim’s] body was a result of intentional, nonaccidental trauma, and that the
       manner of death was homicide, which she defined as death at the hands of
       another.

2015-NMSC-010, ¶¶ 12-13. The Court found that the admission of this testimony was not
plainly erroneous, distinguishing Lucero based on the fact that the expert had not identified
the defendant as the person who had caused the injuries, and “unlike Lucero, where the
expert likely sealed the defendant’s fate with her testimony alone, in this case there is ample
evidence outside of [the expert’s] testimony to support the jury’s finding of guilt.” Montoya,
2015-NMSC-010, ¶ 49.

{42} Although Montoya is one of our Supreme Court’s most recent applications of the
plain error standard, its holding appears to be in tension with Lucero and other cases from
the same court. According to Montoya, the standard of review for plain error is roughly the
same as the analysis for constitutional fundamental error: “the [appellate court] must be
convinced that admission of the testimony constituted an injustice that created grave doubts
concerning the validity of the verdict.” 2015-NMSC-010, ¶ 46 (internal quotation marks and
citation omitted). But Lucero states that the standard of review for plain error is simply
whether the error “affect[s] substantial rights[,]” a standard which the court itself
characterized as “less stringent” than the standard of review for constitutional fundamental
error. 1993-NMSC-064, ¶ 13 (internal quotation marks and citation omitted); see also State
v. Torres, 2005-NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877 (“The plain error doctrine is
not as strict as the doctrine of fundamental error in its application.”). By contrast, in the
analogous circumstance of harmless error review (where the state bears the burden of
proving that an error preserved by the defendant should not result in reversal, instead of the
defendant bearing the burden of showing that an unpreserved error should), our Supreme
Court has stated that courts should look to the effect that the error had on the jury’s
conclusion, not whether the other evidence that was presented would have allowed the jury
to reach the same conclusion. See State v. Tollardo, 2012-NMSC-008, ¶ 42, 275 P.3d 110.

                                              17
This standard is close to the federal interpretation of the “affects substantial rights” prong
of plain error review, which the U.S. Supreme Court has said “in the ordinary case means
it affected the outcome of the district court proceedings[] and . . . the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus,
560 U.S. 258, 262 (2010) (alteration, internal quotation marks, and citations omitted).

{43} But we need not attempt to reconcile these cases here, because we hold that Bregar
cannot satisfy her burden of showing that the admission of Deputy Garcia’s
expert testimony was plainly erroneous under a more permissive standard. Unlike the expert
in Lucero, Deputy Garcia did not “comment directly [on Bregar’s] credibility.” 1993-
NMSC-064, ¶ 15. Moreover, Deputy Garcia’s opinion was not the sole or primary item of
evidence indicating Bregar’s guilt. Our review of the record makes clear that the unified
focus of Bregar’s defense was to attack the evidentiary value of Bregar’s hospital-bed
admissions. And, apart from Deputy Garcia’s expert opinion, additional circumstantial
evidence that Bregar was the driver figured prominently in the State’s case.

{44} In this regard, the jury was instructed that it was to determine whether Bregar’s
statement was voluntarily made, and both the State and the defense devoted significant
portions of their closing statements arguing the issue of whether the jury should credit
Bregar’s statement. Indeed, Bregar’s counsel explained that her lengthy and repeated
arguments concerning the voluntariness and the accuracy of the deputies’ recollections of
the statement were made because that evidence was “so important” to the State’s case. The
State conceded as much, but did not argue that the jury should believe Bregar’s confession
was voluntary because of Deputy Garcia’s testimony. Instead, the State placed primary
emphasis on the fact that Bregar had changed her story when she found out that Spurlin had
died, inconsistencies in the testimony of the witness that Bregar had called to the stand to
testify that she was not the driver, the fact that Spurlin did not have a driver’s license, that
Bregar admitted she owned the Jeep, and that her occupation was serving as Spurlin’s live-in
caretaker. Finally, the State attacked Bregar’s defense that her leg brace prevented her from
driving the Jeep by presenting photographic evidence that the driver’s seat of the Jeep was
found positioned much further back than the passenger’s seat. While Bregar’s attorney
attacked Deputy Garcia’s credibility as an expert in closing, her chief concern was attacking
his credibility as a lay witness, highlighting circumstantial evidence that Spurlin was the
driver (such as the presence of his urine on the driver’s seat) and witness testimony to the
same effect. Viewed against this independent evidence of Bregar’s guilt, we can conclude
that Deputy Garcia’s expert opinion did not likely affect the outcome of the jury’s
deliberations. Thus, the district court’s erroneous admission of Deputy Garcia’s ultimate
conclusion as an expert witness was not plain error. Accordingly, we will not reverse the
district court’s judgment on this ground.

Sufficiency of the Evidence

{45} Bregar’s final argument on appeal is that the State failed to present sufficient
evidence to establish the corpus delicti of vehicular homicide. “The corpus delicti rule

                                               18
provides that ‘unless the corpus delicti of the offense charged has been otherwise
established, a conviction cannot be sustained solely on the extrajudicial confessions or
admissions of the accused.’ ” State v. Weisser, 2007-NMCA-015, ¶ 10, 141 N.M. 93, 150
P.3d 1043 (alteration omitted) (quoting State v. Paris, 1966-NMSC-039, ¶ 6, 76 N.M. 291,
414 P.2d 512). New Mexico courts apply the “modified trustworthiness rule” set forth in
Paris. State v. Wilson, 2011-NMSC-001, ¶ 15, 149 N.M. 273, 248 P.3d 315, overruled on
other grounds by Tollardo, 2012-NMSC-008, ¶ 37. “[T]he existence of the corpus delicti is
demonstrated by the fact that a harm or injury occurred and that the harm or injury was
caused by a criminal act.” Weisser, 2007-NMCA-015, ¶ 10.

{46} Under New Mexico’s “modified trustworthiness rule” approach, “a defendant’s
extrajudicial statements may be used to establish the corpus delicti [of the charged crime]
when the prosecution is able to demonstrate the trustworthiness of the confession and
introduce some independent evidence of a criminal act.” Wilson, 2011-NMSC-001, ¶ 15.
This independent evidence can consist of either “direct or circumstantial evidence, but such
evidence must be independent of a defendant’s own extrajudicial statements.” Weisser,
2007-NMCA-015, ¶ 12 (citations omitted). We review de novo any claim that the State
failed to prove the corpus delicti of the charged offense, but we take all findings of fact that
support a conviction as given if supported by substantial evidence. Wilson, 2011-NMSC-
001, ¶ 17.

{47} The jury was instructed that it should find Bregar guilty of vehicular homicide if the
State proved beyond a reasonable doubt that she “operated a motor vehicle while under the
influence of intoxicating liquor. . . [and Bregar] thereby caused the death of [Mr.] Spurlin[.]”
See § 66-8-101(A) (defining homicide by vehicle as “the killing of a human being in the
unlawful operation of a motor vehicle”); § 66-8-102(A) (“It is unlawful for a person who is
under the influence of intoxicating liquor to drive a vehicle within this state.”).

{48} Bregar argues that because her confession was the only evidence in support of the
jury’s finding that Bregar was the driver, her conviction must be reversed. But the State
presented independent circumstantial evidence to prove the corpus delicti of homicide by
vehicle, including photographs showing that the driver’s seat of the Jeep was reclined and
pushed much further back than the passenger seat. Because Bregar was wearing a leg brace
at the time of the accident, this evidence could have supported a conclusion that Bregar, not
Spurlin, was driving the Jeep at the time of the accident. Bregar argues that this evidence
cannot be considered because the photographs were taken by Deputy Garcia, and his expert
testimony (which we addressed above) was presented in error. But Bregar does not provide
any support for her implicit assertion that admission of car accident photographs taken by
an investigating officer are subject to Rule 11-702. Accordingly, we do not consider it any
further. “[W]here arguments in briefs are unsupported by cited authority, [we assume that]
counsel[,] after diligent search, was unable to find any supporting authority.” In re Adoption
of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329.

{49}   Bregar does cite cases where we found the corpus delicti wanting where the evidence

                                              19
is “susceptible to multiple inferences” both for and against the crime having occurred.
Weisser, 2007-NMCA-015, ¶ 36. Bregar argues that in light of this authority, we should
ignore the evidence that the driver’s-side seat was reclined more than the passenger-side seat
because emergency responders entered the car and turned the ignition off prior to Deputy
Garcia’s arrival. This, Bregar states in her brief in chief, shows that the picture of the seat
equally supports an inference of innocence, because the seat could have been “moved after
driving.” But our Supreme Court has recently reiterated that the “susceptible of multiple
inferences” rule is “no longer an appropriate standard for a New Mexico appellate court” to
apply in reviewing the sufficiency of the evidence supporting a verdict. State v. Garcia, No.
35,451, 2016 WL 4487786, 2016-NMSC-___, ¶ 24, ___ P.3d ___ (Aug. 25, 2016) (emphasis
omitted). Instead, our task on appeal involves first “draw[ing] every reasonable inference in
favor of the jury’s verdict and then . . . evaluat[ing] whether the evidence, so viewed,
supports the verdict.” Id. Although Garcia applies this rule to a sufficiency-of-the-evidence
challenge, we can see no meaningful reason not to also apply the rule in the context of
whether the State has shown a corpus delicti. Here, the position of the seat supports an
inference that Bregar was the driver; Bregar’s argument that paramedics might have moved
the seat when they entered the car goes to the weight of the evidence, not its admissibility.
A reasonable inference from this evidence is that Bregar was the driver. As well, we again
note that the State presented evidence that the Jeep was Bregar’s, that only Bregar was
licensed to drive, and that Bregar was responsible for Spurlin’s care. Accordingly, the State
proved the corpus delicti of vehicular homicide with sufficient evidence apart from Bregar’s
admissions to survive Bregar’s challenge on appeal.

CONCLUSION

{50} We uphold the district court’s denial of Bregar’s pretrial motion to suppress her
hospital-bed admissions. In addition, the district court did not commit plain error by
admitting Deputy Garcia’s expert opinion testimony that Bregar was the driver. We reject
Defendant’s challenge to the sufficiency of the evidence supporting a corpus delicti. The
judgment of the district court is therefore affirmed.

{51}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
TIMOTHY L. GARCIA, Judge


                                              20
