 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 27,291

10 MARIO TRUJILLO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF MORA COUNTY
13 Eugenio S. Mathis, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Max Shepherd, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Mary A. Barket, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 GARCIA, Judge.

25          Mario Trujillo (Defendant) appeals his convictions of one count of abuse of a
 1 child resulting in death in violation of NMSA 1978, Section 30-6-1(D) (2004) (prior

 2 to amendments through 2009), four counts of homicide by vehicle in violation of

 3 NMSA 1978, Section 66-8-101 (2004), one felony count of driving while intoxicated

 4 in violation of NMSA 1978, Section 66-8-102 (2004) (prior to amendments through

 5 2008), one count of driving while license is suspended or revoked in violation of

 6 NMSA 1978, Section 66-5-39 (1993), one count of driving without proper restraints

 7 in violation of NMSA 1978, Section 66-7-372 (2001), one count of driving with a

 8 child not properly restrained in a vehicle in violation of NMSA 1978, Section 66-7-

 9 369 (2001) (amended 2005), and one count of driving without mandatory insurance

10 in violation of NMSA 1978, Section 66-5-205(B) (1998). Defendant raises six issues

11 on appeal: (1) whether the district court erred in the denial of requested jury

12 instructions regarding causation; (2) whether the district court deprived him of a fair

13 trial by granting the State’s motion to exclude certain lay witness testimony and expert

14 witness testimony; (3) whether the district court erred in finding sufficient evidence

15 to support the designation of a serious violent offense pursuant to the earned

16 meritorious deductions statute, NMSA 1978, Section 33-2-34 (2006); (4) whether the

17 district court erred in the admission of certain photographs and denying certain

18 rebuttal evidence; (5) whether the district court erred in denying the motion for

19 mistrial; and (6) whether the district court erred in denying the motion to dismiss the

20 charge of driving with a suspended or revoked license. We reverse and remand for


                                              2
 1 a new trial on all four counts of homicide by vehicle and on the single count of abuse

 2 of a child resulting in death. We conclude that the district court erred when it failed

 3 to give Defendant’s requested jury instructions regarding causation. We affirm

 4 Defendant’s convictions for driving while intoxicated, driving while license is

 5 suspended or revoked, driving without proper restraints, and driving with a child not

 6 properly restrained in a vehicle.

 7 FACTS AND PROCEDURES

 8        On July 3, 2004, at approximately 10:00 a.m., Defendant was involved in a

 9 motor vehicle rollover accident while driving southbound on the I-25 frontage

10 roadway between Wagon Mound and Watrous, New Mexico (the frontage roadway).

11 The accident occurred on a clear day in a location where the frontage roadway turned

12 slightly to the left. Defendant was driving his personal truck, and five additional

13 passengers were in the vehicle at the time of the accident. Defendant was the only

14 occupant who survived the accident. No other vehicles were involved in the accident.

15 Although there was evidence that one occupant was wearing a seat belt, there was no

16 evidence that any of the other occupants were wearing seat belts. Several of the

17 passengers were ejected from Defendant’s truck.

18        In May 2004, approximately six weeks prior to the accident, the New Mexico

19 Department of Transportation applied a “chip-seal” process to the frontage roadway

20 between Wagon Mound and Watrous. Chip sealing involves a process of spreading


                                              3
 1 tacky oil on the top of the roadway, followed by spreading small rock chips and

 2 compacting the chips into the oil with rollers. The loose chips are then swept away,

 3 with many chips scattering and collecting on the shoulder of the roadway. When the

 4 chip-sealing process is complete, the center-line striping and solid-line striping along

 5 the edge of the roadway are covered and no longer visible to drivers. At the time of

 6 Defendant’s accident, the Department had not repainted the center-line striping and

 7 solid-line striping along the edge of the frontage roadway in the relevant section

 8 where the accident occurred. The shoulder of the frontage roadway consisted of dirt.

 9 The chip-sealing process raises the pavement portion of the roadway above the dirt

10 shoulder by approximately one-half inch. At the location of Defendant’s accident, the

11 height of the drop off between the roadway and dirt shoulder was between less than

12 one inch and three inches.

13        Approximately four to five weeks prior to Defendant’s accident, State

14 Representative Hector Balderas was involved in a single-car accident while coming

15 onto the northbound frontage road of I-25 immediately from an underpass location

16 and entering a slanted/banked loop. The speed limit at the location of the Balderas

17 accident was between twenty-five and thirty-five miles per hour. The location of the

18 Balderas accident was approximately five to six miles away from Defendant’s

19 accident location. The frontage roadway in the location of the Balderas accident had

20 recently been chip sealed, and the highway striping had not been repainted.


                                              4
 1        Expert witnesses testified about the cause of Defendant’s accident. It is

 2 undisputed that two of Defendant’s truck tires left the pavement on the right side of

 3 the frontage roadway, corrected while on the dirt shoulder, and attempted to re-enter

 4 the roadway before rolling over and coming to rest on the right shoulder. Law

 5 enforcement officers arrived at the scene approximately fifteen minutes after the

 6 accident and conducted an investigation. Defendant was taken to the hospital where

 7 a blood alcohol test was conducted at approximately 11:20 a.m., yielding a blood

 8 alcohol concentration (BAC) of fourteen one-hundredths (.14). Breath alcohol tests

 9 were also conducted at approximately 1:50 p.m. and 1:53 p.m., yielding a breath

10 alcohol concentration (BrAC) of ten one-hundredths (.10) and nine one-hundredths

11 (.09) respectively.

12        Defendant disputed the cause of the accident, while the State argued that the

13 only cause of the accident was Defendant’s driving while under the influence of

14 alcohol. In support of his theory, Defendant presented expert testimony, including an

15 accident reconstructionist who testified, among other things, that the pavement edge

16 drop “may have contributed to [the] accident.” Defendant later requested a jury

17 instruction on proximate cause based on UJI 14-251 NMRA. The district court agreed

18 with the State’s position and denied Defendant’s requested instruction on proximate

19 causation. A jury ultimately convicted Defendant on all counts, and this appeal

20 followed.


                                             5
 1 DISCUSSION

 2 The District Court Committed Reversible Error in Refusing UJI 14-251

 3        We must decide whether the district court erred in denying Defendant’s

 4 requested instruction defining causation, UJI 14-251.        The propriety of jury

 5 instructions given or denied is a mixed question of law and fact that we review de

 6 novo. State v. Munoz, 1998-NMSC-041, ¶ 8, 126 N.M. 371, 970 P.2d 143. On

 7 review, we “view the evidence in the light most favorable to the giving of the

 8 requested instruction.” State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d

 9 139.

10        Defendant requested the following instruction defining causation in accordance

11 with UJI 14-251:

12              In addition to the other elements of the crime of homicide by
13        vehicle . . . the state must also prove to your satisfaction beyond a
14        reasonable doubt that:

15              1.    The death was a foreseeable result of the defendant’s act;

16              2.    The act of the defendant was a significant cause of the
17                    death of [victims]. The defendant’s act was a significant
18                    cause of death if it was an act which, in a natural and
19                    continuous chain of events, uninterrupted by an outside
20                    event, resulted in the death and without which the death
21                    would not have occurred.

22              3.    This happened in New Mexico, on or about the [t]hird day
23                    of July, 2004.

24 Use Note 8 to UJI 14-240 NMRA for vehicular homicide states that “[i]f causation is


                                             6
 1 in issue, Instruction 14-251, the definition of causation, must also be used.”

 2 (Emphasis added.) Use Note 1 to UJI 14-251 is consistent with UJI 14-240 and states

 3 that UJI 14-251 is to be used “only if causation is in issue.” The State had the burden

 4 to prove that Defendant caused the fatal accident. See § 66-8-101 (stating that the

 5 state has to prove a causal relationship between the defendant’s unlawful blood

 6 alcohol content and the fatal collision in a vehicular homicide case); Munoz, 1998-

 7 NMSC-041, ¶¶ 15-16 (discussing the state’s burden of proving that the accused

 8 caused the death in a vehicular homicide case). The question before us is whether

 9 Defendant challenged the State’s causation theory with sufficient evidence to make

10 causation an “issue.”

11        The State argued at trial that Defendant’s intoxication was the sole cause of the

12 accident and that the evidence did not support the proximate cause instruction.

13 Defendant’s theory of the case was that he was not impaired at the time of the accident

14 and that there were other causes of the accident. He presented evidence to support his

15 theory. Witnesses testified that his truck was having mechanical problems during the

16 days before the accident and that there was loose gravel and no striping on the road

17 on the day of the accident. Evidence also demonstrated that on the day of the

18 accident, there was a pavement edge drop between an inch or less and three inches due

19 to chip sealing of the roadway. Defendant’s expert testified that the edge drop may

20 have contributed to the accident. The expert based his opinion on information he


                                              7
 1 received from the police investigation, from research and studies, and from the way

 2 the truck behaved when it traveled off and back onto the roadway. While the State

 3 challenges the credibility of Defendant’s evidence, credibility is for the jury. Poore

 4 v. State, 94 N.M. 172, 173-74, 608 P.2d 148, 149-50 (1980).

 5        Defendant also presented evidence regarding his history of drinking alcohol and

 6 his blood alcohol content in an attempt to demonstrate that he was not impaired by

 7 alcohol at the time of the accident. Defendant’s co-worker testified that Defendant

 8 often had multiple beers during the evening and was not impaired during work the

 9 following day. His retrograde extrapolation expert testified that Defendant’s blood

10 alcohol content may have been less than .08 at the time of the accident. Defendant’s

11 friend and the nurse who treated Defendant testified that he did not appear drunk after

12 the accident.

13        Whether Defendant’s intoxication or something else caused the truck to swerve

14 off the road and eventually roll was the subject of hours of testimony. Based on the

15 parties’ conflicting arguments about the cause of the accident, causation was clearly

16 “in issue.” Because the cause of the accident was in dispute, the definition of

17 causation was important to Defendant’s defense theory and to help the jury fully

18 understand the State’s burden of proof. See Poore, 94 N.M. at 175, 608 P.2d at 151

19 (“[A] defendant is still entitled to an instruction which sets forth his theory of the case

20 if there is supportive evidence.”). Viewing the evidence in the light most favorable


                                                8
 1 to giving the instruction, the district court should have given UJI 14-251. The district

 2 court’s refusal to give the causation definition prejudiced Defendant because the jury

 3 was not instructed on the definition of causation, and Defendant was not allowed to

 4 challenge the State’s theory of causation. The district court committed reversible

 5 error. See State v. Jernigan, 2006-NMSC-003, ¶¶ 20, 25, 139 N.M. 1, 127 P.3d 537

 6 (filed 2005) (reversing the defendant’s conviction because he presented sufficient

 7 evidence to support the giving of the definition of “provocation” as required by the

 8 use note); State v. Barber, 2004-NMSC-019, ¶¶ 9-12, 135 N.M. 621, 92 P.3d 633

 9 (stating that if the defendant had requested the jury instruction definition mandated

10 by the use note, “it would have been reversible error for the court to deny him”); see

11 also Poore, 94 N.M. at 174-75, 608 P.2d at 150-51 (finding reversible error after the

12 district court refused to give the causation instruction in a vehicular homicide case

13 because “[i]f under any reasonable hypothesis the instruction could have been of any

14 benefit to the defendant when considered by a jury of lay persons, then [the] defendant

15 was harmed and prejudiced by the refusal to give it”).

16        For the foregoing reasons, we reverse and remand for a new trial on

17 Defendant’s convictions of homicide by vehicle and abuse of a child resulting in

18 death. Consequently, we reverse and remand the district court’s determination that

19 the conviction for child abuse resulting in death was a serious violent offense. We do

20 not address Defendant’s remaining arguments regarding the five counts that are


                                              9
 1 reversed herein. We now review Defendant’s other issues on appeal as they pertain

 2 to his remaining convictions.

 3 The District Court Did Not Err in Admitting Photographs

 4        Defendant argues that the district court erred in allowing photographs of the

 5 scene of the accident into evidence because the photographs were highly prejudicial

 6 and cumulative. The district court has discretion when deciding whether to allow

 7 photographs into evidence, and we review the court’s evidentiary decision for an

 8 abuse of discretion. State v. Pettigrew, 116 N.M. 135, 139, 860 P.2d 777, 781 (Ct.

 9 App. 1993).

10        Relevant evidence is admissible as long as the probative value of the evidence

11 is not substantially outweighed by the danger of unfair prejudice. Rules 11-402, 11-

12 403 NMRA. Defendant objected to the admission of nine photographs. Of those

13 photographs, the State withdrew four after the district court made the State choose

14 between photographs depicting the same information. The court then heard argument

15 from both counsel regarding the remaining five photographs. The district court was

16 concerned about the probative value of the photographs. The prosecutor explained

17 that one of the photographs showed the position of the seat belt with regard to one of

18 the victims. Defense counsel admitted that during pretrial interviews, he had

19 considered arguing that if the victims had been wearing seat belts, they would not

20 have died, and he also admitted that questions regarding seat belt use had come up.


                                             10
 1 The district court ultimately admitted the photographs into evidence, stating, “If we’re

 2 going to go along those lines, . . . these photographs are probative, then, of something

 3 that the jury might consider or something that [might] be raised[.]”

 4        The photographs were relevant because they depicted the scene of the accident,

 5 including the location of the wreck, the condition of the road and the truck, and the

 6 bodies. The record is clear that the court balanced the probative and prejudicial value

 7 of the photographs before admitting them into evidence. The court required the State

 8 to withdraw several of the photographs depicting cumulative information. A rational

 9 analysis of the competing interests was reflected in the record. Given the relevance

10 of the remaining photographs in depicting the scene of the accident and in rebutting

11 Defendant’s arguments, we conclude the district court did not abuse its discretion in

12 admitting the disputed photographs. See, e.g., State v. Mora, 1997-NMSC-060, ¶¶ 52,

13 55, 124 N.M. 346, 950 P.2d 789 (holding the district court did not abuse its discretion

14 in admitting photographs of an abused child); Pettigrew, 116 N.M. at 139, 860 P.2d

15 at 781 (stating that this court is unaware of a case where a conviction has been

16 reversed because allegedly inflammatory photographs were admitted inappropriately

17 into evidence).

18 The District Court Did Not Err in Denying Defendant’s Motion for a Mistrial

19        Defendant argues that the district court erred by denying his motion for a

20 mistrial after Officer Hinders mentioned Defendant’s prior DWI convictions. We


                                              11
 1 review the denial of a motion for mistrial for an abuse of discretion. State v. Lucero,

 2 1999-NMCA-102, ¶ 32, 127 N.M. 672, 986 P.2d 468. The court abuses its discretion

 3 “when the decision is clearly against the logic and effect of the facts and

 4 circumstances before the court.” Id. (internal quotation marks and citation omitted).

 5        Rule 11-404(B) NMRA prohibits “[e]vidence of other crimes, wrongs or acts

 6 . . . to prove the character of a person in order to show action in conformity

 7 therewith.” Prior to trial, the district court prohibited the State’s witnesses from

 8 mentioning Defendant’s prior DWI convictions. During direct examination, Officer

 9 Hinders stated, “[Sergeant Martin] questioned [Defendant] on if he had drank that

10 morning and the nature of the accident, prior DWI convictions and . . . that was

11 basically it. [Sergeant] Martin did raise the issue a few times whether [Defendant]

12 . . . thought that he had a drinking problem[.]” During a break in testimony,

13 Defendant asked for a mistrial based on Officer Hinders’ comments. The district court

14 denied the motion, stating, “There was no specific mention that . . . Defendant had

15 prior convictions. The comment was during the course of the paperwork he was

16 searching the driving history and searching for prior DWIs. I don’t think this officer

17 actually said that . . . Defendant had prior convictions for DWI.” The court also

18 declined to give a curative instruction on the matter for fear of alerting the jury to the

19 issue, and Defendant agreed with the court’s decision. The court then reminded

20 counsel that witnesses were not to mention Defendant’s prior DWI convictions or a


                                               12
 1 mistrial could result.

 2        We are not convinced after reviewing the testimony that Officer Hinders

 3 actually stated that Defendant had prior DWI convictions. Officer Hinders states only

 4 that Sergeant Martin was investigating whether Defendant had prior DWI convictions,

 5 not that Defendant did in fact have prior DWI convictions. The comment was at most

 6 an indirect reference to any possible prior convictions. Without more, the comment

 7 did not require the severe sanction of a mistrial, and the district court did not abuse its

 8 discretion in denying Defendant’s motion.

 9        Even if we were to characterize Officer Hinders’ testimony as a violation of

10 Rule 11-404(B), we conclude the error was harmless. See Sanchez v. State, 103 N.M.

11 25, 27, 702 P.2d 345, 347 (1985) (stating the test for harmless error). As part of his

12 defense, Defendant presented direct testimony that he was a heavy drinker who could

13 tolerate a substantial amount of alcohol. In addition, there were BAC and BrAC

14 results demonstrating that Defendant had been drinking on the morning of the

15 accident. Furthermore, the State claimed that it was not trying to elicit information

16 about Defendant’s prior convictions and that the comment was not intentional. See

17 State v. Simonson, 100 N.M. 297, 300-01, 669 P.2d 1092, 1095-96 (1983) (affirming

18 the district court’s denial of the defendant’s motion for a mistrial after the court

19 sustained the objection to testimony not elicited by the prosecutor and gave a curative

20 instruction). Given the amount of evidence that Defendant was a heavy drinker, the


                                               13
 1 inadvertent comment about possible prior DWI convictions was not overly prejudicial.

 2 See State v. Christmas, 2002-NMCA-020, ¶ 16, 131 N.M. 591, 40 P.3d 1035 (filed

 3 2001) (holding that an officer’s improper comment about an HGN test resulted in

 4 harmless error because there was other overwhelming evidence probative of the

 5 defendant’s intoxication).

 6 The District Court Properly Denied Defendant’s Motion to Dismiss and Motion
 7 for a Directed Verdict

 8        Defendant argues that the district court erred in denying his motion to dismiss

 9 and motion for a directed verdict for the charge of driving with a suspended or

10 revoked license. Although Defendant’s argument is somewhat unclear, it appears

11 Defendant is contending that the district court erred because Defendant’s due process

12 rights were violated when the State failed to prove that it had mailed Defendant notice

13 of his license revocation. To the extent that Defendant claims a due process violation,

14 he did not preserve this argument. We decline to address arguments not preserved on

15 appeal. See State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986)

16 (“It is well-settled that objections must be raised below to preserve an issue for

17 appellate review.”).

18        To the extent Defendant claims that there was insufficient evidence to prove

19 that he knew his license was suspended or revoked as required under Section 66-5-39,

20 we disagree. See State v. Castro, 2002-NMCA-093, ¶¶ 3, 6-8, 132 N.M. 646, 53 P.3d

21 413 (requiring that the state prove the defendant knew her license was revoked in

                                             14
 1 order to sustain a conviction under Section 66-5-39). Sergeant Martin testified for the

 2 State and stated that Defendant told him that his license was suspended. Defense

 3 counsel later admitted that Defendant stated he knew his license was suspended. This

 4 evidence is sufficient to prove that Defendant knew his license was suspended or

 5 revoked. The district court did not err in denying Defendant’s motions regarding the

 6 charge of driving with a suspended or revoked license. See State v. Sutphin, 107 N.M.

 7 126, 131, 753 P.2d 1314, 1319 (1988) (affirming the district court’s denial of the

 8 defendant’s motion for a directed verdict when substantial evidence supported the jury

 9 verdict of guilty).

10 CONCLUSION

11        The district court erred in refusing to give UJI 14-251. As a result, we reverse

12 Defendant’s conviction for four counts of homicide by vehicle and one count of child

13 abuse resulting in death, and we remand for a new trial on these counts. We also

14 reverse the district court’s determination that the conviction for child abuse resulting

15 in death was a serious violent offense and remand for consideration only after the

16 completion of a new trial on the charge of child abuse resulting in death. We affirm

17 Defendant’s remaining convictions for driving while intoxicated, driving while license

18 is suspended or revoked, driving without proper restraints, driving with a child not

19 properly restrained in a vehicle, and driving without mandatory insurance.

20        IT IS SO ORDERED.


                                              15
1                                      ______________________________
2                                      TIMOTHY L. GARCIA, Judge




3 WE CONCUR:


4 _________________________________
5 CYNTHIA A. FRY, Chief Judge


6 _________________________________
7 MICHAEL D. BUSTAMANTE, Judge




                                  16
