 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ___________

 3 Filing Date: July 28, 2017

 4 NO. 34,812

 5 STATE OF NEW MEXICO,

 6        Plaintiff-Appellant,

 7 v.

 8 CODY PLATERO,

 9        Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
11 James Lawrence Sanchez, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   John J. Woykovsky, Assistant Attorney General
15   Albuquerque, NM

16 for Appellant

17 Bennett J. Baur, Chief Public Defender
18 J.K. Theodosia Johnson, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellee
 1                                        OPINION

 2 GARCIA, Judge.

 3   {1}   This case presents the question of whether, as a preliminary matter, the State

 4 should be prohibited from presenting its evidence to establish the corpus delicti of

 5 vehicular homicide where the cause of an accident and the cause of death are to be

 6 drawn purely from circumstantial evidence and without any expert testimony. The

 7 State appeals the district court’s order dismissing the charges against Defendant Cody

 8 Platero for two counts of vehicular homicide and possession of a controlled

 9 substance. The district court dismissed the charges, pursuant to Rule 5-601(B)

10 NMRA and State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329.

11 The district court found that “the State [could not] meet its burden of proving cause

12 of death or presenting evidence of [the] cause of death” without expert testimony,

13 which the State did not schedule to call for trial. We conclude that circumstantial

14 evidence may be used to establish the elements of vehicular homicide and that an

15 expert’s testimony is not required as a matter of law before the State may proceed

16 with its case in chief. The State presented sufficient facts in the indictment and at the

17 pretrial hearings to circumstantially establish the corpus delicti of vehicular homicide.

18 Therefore, the district court erred in finding that an expert was required as a matter
 1 of law in this case. We reverse and remand to the district court for further proceedings.

 2 BACKGROUND

 3   {2}   On December 14, 2010, the Valencia County Sheriff’s Department responded

 4 to reports of a wrecked car on New Mexico Highway 47. There were no eyewitnesses

 5 to the crash. Officers on the scene observed what they believed to be “a rollover

 6 accident that resulted in the death of a female subject, who had been apparently

 7 ejected from the motor vehicle.” Officers followed a pair of footprints and located

 8 Defendant, who smelled “strongly of an alcoholic beverage, had slurred speech and

 9 bloodshot watery eyes.” He sustained numerous injuries, which the officers

10 concluded were the result of being ejected from the vehicle. When interviewed by

11 police at the hospital, Defendant initially denied knowledge of the wreck and then

12 told officers that he and the deceased, Amber Smith, were going to the desert to have

13 sex and that she was driving.

14   {3}   On January 26, 2012, a grand jury indicted Defendant on two counts of

15 homicide by vehicle, by driving while under the influence of intoxicating liquor or

16 drugs and by reckless driving, in violation of NMSA 1978, Section 66-8-101(C)

17 (2004, amended 2016). Defendant was also charged with possession of a controlled

18 substance, in violation of NMSA 1978, Section 30-31-23 (2005, amended 2011), and

19 leaving the scene of the accident, in violation of NMSA 1978, Section 66-7-201(C)


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 1 (1989). The indictment, in pertinent part, charged Defendant “did cause the death of

 2 [decedent] in the unlawful operation of a motor vehicle while under the influence of

 3 intoxicating liquor or any drug . . . [or] in a reckless manner[.]”

 4   {4}   Defendant was arraigned on March 13, 2012. The case was set for trial in

 5 March 2015. On February 18, 2015, Defendant moved to exclude or limit the

 6 testimony of State witnesses, including lab technicians and police officers, regarding

 7 the cause of the accident and the cause of death of the decedent. Defendant argued

 8 that because the State’s witness list included no experts on these issues, testimony

 9 about the cause of the accident or cause of the death of the decedent would be

10 speculation and prejudicial to Defendant. The State agreed that it would not call an

11 expert witness to testify as to the cause of the accident and that there were no

12 witnesses who observed the cause of the crash. Furthermore, the State did not have

13 an autopsy report for the decedent, and no one from the Office of the Medical

14 Investigator (OMI) was on the State’s witness list.

15   {5}   The district court held a hearing on Defendant’s motion on February 25, 2015,

16 and trial was scheduled to begin the following week, March 2, 2015. The district

17 court asked the State how it would prove that the accident was the decedent’s cause

18 of death. The State argued that circumstantial evidence was sufficient. Defendant

19 responded that the State could not show who was driving or what happened to cause


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 1 the accident stating, “This case is all about speculation. . . . We have a problem with

 2 the sufficiency of the evidence.” Defendant agreed with the district court’s

 3 characterization of the motion as a “direct[ed] verdict [motion].” The district court

 4 asked the parties to provide relevant case law as to whether trial could move forward

 5 on the facts presented, otherwise the court would rule that “as a matter of law, the

 6 State does not have a critical piece of the puzzle to go forward with the case” and

 7 would dismiss pursuant to Foulenfont, 1995-NMCA-028. After a subsequent hearing

 8 on February 27, 2015, the district court dismissed counts one, two and three, related

 9 to vehicular homicide and the possession of a controlled substance, and stayed the

10 proceedings with regard to count four, leaving the scene of an accident. The district

11 court explained its belief that dismissal was proper because “the State cannot meet

12 its burden of proving cause of death or presenting evidence of [the] cause of death,

13 . . . they can’t do it circumstantially on this case with lay witnesses.” The district court

14 dismissed the charges “for failure of the State to have a critical witness ready to

15 testify [for trial].” The State timely appealed.

16 DISCUSSION

17   {6}   “Judicial authority to rule on pretrial motions in criminal matters is outlined in

18 Rule 5-601.” State v. LaPietra, 2010-NMCA-009, ¶ 7, 147 N.M. 569, 226 P.3d 668.

19 Rule 5-601(B) provides that “[a]ny defense, objection or request which is capable of


                                                4
 1 determination without a trial on the merits may be raised before trial by motion.” Id.;

 2 see State v. Gomez, 2003-NMSC-012, ¶ 8, 133 N.M. 763, 70 P.3d 753 (stating that

 3 where a motion involves factual matters that are not capable of resolution without a

 4 trial on the merits, Rule 5-601(B) requires the question to be submitted to the fact-

 5 finder). We review whether the district court was within its authority under Rule 5-

 6 601 in dismissing charges against Defendant under a de novo standard of review. See

 7 LaPietra, 2010-NMCA-009, ¶ 5 (“The contours of the district court’s power to

 8 conduct a pretrial hearing on a motion to dismiss charges brought under Rule 5-601

 9 is a legal question reviewed under a de novo standard.”).

10   {7}   “In Foulenfont, we stated that it was proper for a district court to decide purely

11 legal matters and dismiss a case when appropriate before trial.” LaPietra, 2010-

12 NMCA-009, ¶ 7. “Questions of fact, however, are the unique purview of the jury and,

13 as such, should be decided by the jury alone.” Id.; see Foulenfont, 1995-NMCA-028,

14 ¶ 3 (stating that “it was improper to dismiss a failure to appear charge on the basis of

15 a factual determination made at the preliminary hearing stage”). In Foulenfont, the

16 purely legal issue addressed by this Court was whether a fence is a “structure” under

17 the burglary statute; the district court had ruled it was not. 1995-NMCA-028, ¶¶ 2,

18 7. The state conceded that the facts of the case were not in dispute and that finding

19 the defendant guilty turned only on the resolution of the legal question regarding the


                                               5
 1 fence. Id. ¶ 6. Accordingly, we held that the district court properly resolved the legal

 2 question prior to trial and upheld the dismissal. Id. ¶¶ 10, 13. However, in such cases

 3 where the factual matters are in dispute and not capable of resolution without a trial

 4 on the merits, our Supreme Court held that the district court “lacks the authority to

 5 grant the motion prior to trial.” State v. Hughey, 2007-NMSC-036, ¶ 11, 142 N.M.

 6 83, 163 P.3d 470.

 7   {8}   Generally, a Rule 5-601(B) motion may not be used to test the sufficiency of

 8 the State’s evidence to establish the elements of the charged crime. In LaPietra, the

 9 defendants, charged with intentional or neglectful child abuse resulting in great

10 bodily harm, brought a Foulenfont motion arguing that the state lacked evidence to

11 prove that the defendants caused their children to be placed in a situation that

12 endangered their life or health. LaPietra, 2010-NMCA-009, ¶¶ 1, 8. On appeal, the

13 defendants framed the issue as a legal question that asked whether the state had any

14 evidence that would justify a jury trial. Id. ¶ 8. In reversing, this Court explained that

15 “[w]hen an issue involves a specific determination or finding, especially when it is

16 an element of the offense, it is a question that is within the unique purview of the

17 jury” and rejected what the state characterized as “a pretrial attack on the sufficiency

18 of [the] evidence under the guise of a Foulenfont motion[.]” LaPietra,

19 2010-NMCA-009, ¶¶ 6, 10.


                                               6
 1   {9}    Recently in State v. Pacheco, this Court recognized that the question of “the

 2 district court’s ‘authority’ to decide a motion or whether the motion involves a

 3 question of fact or a pure question of law” may be confusing and therefore sought to

 4 reframe the analysis. 2017-NMCA-014, ¶ 10, 388 P.3d.307. In Pacheco, the state

 5 appealed the district court’s dismissal of charges against the defendant for fraud.

 6 2017-NMCA-014, ¶¶ 1-2. The state argued that the district court improperly resolved

 7 a question of fact as to the meaning of a release agreement between the defendant and

 8 the other party to the contract. Id. ¶ 9. Based upon Rule 5-601 and Foulenfont, this

 9 Court reframed the issue before it, stating, “the underlying question [is] whether the

10 undisputed facts—whether stipulated to by the [s]tate or alleged in the indictment or

11 information—show that the [s]tate cannot prove the elements of the charged offense

12 at trial, thereby making a trial on the merits unnecessary.” Id. ¶ 10. More succinctly,

13 “whether the state could reasonably assert the availability of additional evidence.” Id.

14 (alteration, internal quotation marks, and citation omitted). This Court held that the

15 defendant’s motion to dismiss could not be decided without a trial because an element

16 of the charge of fraud was in dispute and the state planned to present such evidence

17 at trial. Id. ¶¶ 11-12.

18   {10}   Here, the State argues that the district court erred by dismissing the charges

19 against Defendant in reliance on Foulenfont. The State frames the question on appeal


                                               7
 1 as a purely legal issue: whether expert testimony was required, as a matter of law, to

 2 prove the cause of death of the decedent. The State argues that there is no such

 3 requirement, and in this case, no need that expert testimony be offered to prove cause

 4 of death as a matter of law. The State further argues that the district court was in no

 5 position to require such testimony in this case because: (1) the district court could not

 6 make a determination without hearing testimony and considering photographs and

 7 other evidence of the accident scene and the decedent’s injuries, and (2) the district

 8 court did not have the authority, pretrial, to make such a factual determination. We

 9 agree, and Defendant concedes that cause of death may be proved by circumstantial

10 evidence and an expert is not required in every instance. See State v. Brown, 1984-

11 NMSC-014, ¶ 8, 100 N.M. 726, 676 P.2d 253 (holding the eyewitness accounts that

12 the defendant struck the victim in the head and dragged her body away was sufficient

13 to prove that she died as a result of her injuries); State v. Bell, 1977-NMSC-013,

14 ¶¶ 11-15, 90 N.M. 134, 560 P.2d 925 (rejecting the defendant’s argument that “great

15 bodily harm” be proved by medical testimony); see also State v. Jacobs, 1978-

16 NMCA-013, ¶ 12, 91 N.M. 445, 575 P.2d 954 (“Even if the evidence is

17 circumstantial, if the circumstantial evidence substantially supports the verdict, the

18 verdict will not be set aside.”), overruled on other grounds by State v. Moore,

19 1989-NMCA-073, 109 N.M. 119, 782 P.2d 91. However, Defendant argues that the


                                               8
 1 State could not prove the corpus delicti of vehicular homicide because it had “no

 2 evidence, direct or circumstantial,” of the two elements of the crime: (1) “that

 3 [Defendant] was in the unlawful operation of a motor vehicle[,]” and (2) “that the

 4 death was caused by the unlawful operation of a motor vehicle.”

 5   {11}   In reliance on the framework set forth in Pacheco, we must determine whether

 6 the facts—as alleged in the indictment and presented at the pretrial hearing—show

 7 that the State could not prove the elements of vehicular homicide at trial, thereby

 8 making trial unnecessary. See 2017-NMCA-014, ¶ 10.

 9   {12}   Defendant was charged with two counts of vehicular homicide, pursuant to

10 Section 66-8-101(C) which states, “A person who commits homicide by vehicle or

11 great bodily harm by vehicle while under the influence of intoxicating liquor or while

12 under the influence of any drug or while [driving recklessly] is guilty of a third degree

13 felony[.]” The corresponding Uniform Jury Instruction states that the elements of

14 vehicular homicide are: (1) “[t]he defendant operated a motor vehicle . . . while under

15 the influence of intoxicating liquor [or] while under the influence of . . . a drug [or]

16 in a reckless manner”; (2) “[t]he defendant thereby caused the death of or great bodily

17 injury to [the victim]”; and (3) “[t]his happened in New Mexico[.]” UJI 14-240

18 NMRA (alternations omitted).




                                               9
 1   {13}   First, the State presented circumstantial evidence that Defendant was not in the

 2 lawful operation of the vehicle. Defendant admitted to officers that he was in the

 3 vehicle. The investigation concluded that blood found on the driver’s side matched

 4 Defendant’s DNA. Defendant had a blood alcohol content of 0.06 and had

 5 methamphetamine in his system. Although the State admits that the prosecutor had

 6 no intention of calling an expert reconstructionist or an eyewitness to testify to the

 7 cause of the accident, corpus delicti may be proved by direct or circumstantial

 8 evidence. See State v. Maestas, 1978-NMCA-084, ¶ 60, 92 N.M. 135, 584 P.2d 182.

 9 The State therefore presented acceptable facts as to the first element of the charge of

10 vehicular homicide.

11   {14}   Defendant argues that the State should be required to provide additional

12 evidence as to the cause of the accident. Defendant cites several prior cases where

13 this Court determined there was sufficient evidence to prove vehicular homicide

14 based on facts presented by eyewitness testimony or an expert to reconstruct the

15 accident. See State v. Munoz, 2014-NMCA-101, ¶ 11, 336 P.3d 424 (compiling cases

16 of vehicular homicide by reckless driving in which all had eyewitnesses of the

17 defendant’s driving at high speeds or an accident reconstructionist to establish

18 recklessness). However, we do not view these authorities as “requiring” such proof

19 as a preliminary matter. Instead, we see Defendant’s argument to be an attempt to


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 1 have us weigh the sufficiency of the circumstantial evidence presented—a factual

 2 determination that would be inappropriate at this juncture in the case. See State v.

 3 Bregar, 2017-NMCA-028, ¶ 49, 390 P.3d 212 (stating that the state proved the

 4 corpus delicti of vehicular homicide where the inference could be drawn from the

 5 position of the driver’s seat that the defendant was the driver of the vehicle).

 6   {15}   The second element of the crime may also be proved through circumstantial

 7 evidence. Our appellate courts, in evaluating the sufficiency of the evidence, have

 8 stated that circumstantial evidence and lay witness testimony is sufficient to establish

 9 the cause of death, as well as to establish great bodily harm. See, e.g., State v. Coyle,

10 1935-NMSC-020, ¶ 16, 39 N.M. 151, 42 P.2d 770 (rejecting the argument that the

11 evidence was insufficient to prove murder where the state failed to obtain an autopsy

12 report on the cause of death). In Brown, the defendant, convicted of first degree

13 murder and criminal sexual penetration, argued on appeal that there was insufficient

14 evidence to support his conviction because the jury relied on circumstantial evidence.

15 1984-NMSC-014, ¶¶ 1, 5. Our Supreme Court recognized that the evidence—the

16 defendant struck victim in the head and helped drag her body away—was sufficient

17 to prove she died as a result of the injuries inflicted by the defendant. Id. ¶ 8. In Bell,

18 our Supreme Court rejected the defendant’s argument that there was no medical

19 testimony establishing great bodily harm to support a first degree kidnaping


                                               11
 1 conviction, stating “the law does not require that great bodily harm be proved

 2 exclusively by medical testimony.” 1977-NMSC-013, ¶¶ 11-15 (internal quotation

 3 marks and citation omitted). Many other jurisdictions have similarly concluded that

 4 cause of death in homicide cases may be “established not only by a physician or

 5 pathologist, but by lay and circumstantial evidence.” Wiley v. State, 449 So. 2d 756,

 6 760 (Miss. 1984); see Higgs v. State, 222 P.3d 648, 654 (Nev. 2010); Fountain v.

 7 State, 401 S.W.3d 344, 356 (Tex. Crim. Ct. App. 2013); see also Shields v. State, 677

 8 S.E.2d 100, 103 (Ga. 2009); State v. Casper, 219 N.W.2d 226, 227 (Neb. 1974).

 9 Resultantly, some courts have also concluded that the type of circumstantial evidence

10 generally presented in vehicular homicide cases makes expert testimony unnecessary

11 on the issue of the cause of death. See People v. Tostado, 416 N.E.2d 353, 357 (Ill.

12 App. Ct. 1981) (stating that “[p]roof of death . . . may be established by circumstantial

13 evidence” in a case in which an eyewitness observed the accident, the victim was

14 ejected from the vehicle, and the paramedics found no pulse); State v. Price, 406 A.2d

15 883, 885 (Me. 1979) (stating that the “[s]tate’s failure to call a medical expert does

16 not render the evidence insufficient for a jury determination on the cause of death”

17 in which the victim’s airway filled with blood after the crash); State v. Golstone, 175

18 N.W. 892, 893 (Minn. 1920) (holding that “the jury might infer that the contact with




                                              12
 1 the car caused his death” from the fact that the victim was knocked down and dragged

 2 under the vehicle).

 3   {16}   In this case, although the facts are attenuated and would require the jury to

 4 make several inferences, there is circumstantial evidence to support the second

 5 element of vehicular homicide—the crash caused the death of the decedent.

 6 Defendant told officers that the decedent was alive in the vehicle and that she was

 7 driving prior to the accident. The decedent was found by officers with “visible signs

 8 of trauma” and appeared to have been ejected from the vehicle in the roadway.

 9 Although the State readily conceded that it would not call an expert to testify as to the

10 cause of death and that its officers would only be able to testify as to their personal

11 observations on the scene, the circumstantial evidence to be presented by the State

12 is sufficient to establish the corpus delicti of the crime and to overcome a motion

13 pursuant to Foulenfont.

14   {17}   Defendant continues to argue as to the cause of death that there is no evidence

15 that the decedent died as a result of the accident. Again, Defendant distinguishes the

16 case law cited above as having an eyewitness to the crash to establish that the

17 decedent was alive immediately before and dead after the crash. The fact-finder may

18 be troubled by the State’s failure to secure any expert from OMI or an autopsy to

19 opine on the cause of death but that does not allow the district court to ignore the


                                              13
 1 circumstantial evidence and our legal precedent on the issue. This appeal does not

 2 present us with the question of whether the facts as alleged are sufficient to overcome

 3 a directed verdict motion or to support a finding by the jury of guilt beyond a

 4 reasonable doubt. Whether the evidence presented at trial would meet these standards

 5 is not before us. Neither is the question of the admissibility of the State’s evidence.

 6 We only conclude that the circumstantial facts presented by the State are sufficient

 7 for the State to proceed to trial in its attempt to prove the elements of vehicular

 8 homicide. See Pacheco, 2017-NMCA-014, ¶ 10.

 9   {18}   We, therefore, hold that the district court erred in finding that an expert was

10 required to prove cause of death in this case and, inconsistent with established

11 precedent, the district court improperly weighed and measured the sufficiency of the

12 evidence. See LaPietra, 2010-NMCA-009, ¶ 13 (stating that “[d]istrict courts are

13 simply not permitted to re-evaluate the sufficiency of the evidence behind an

14 indictment prior to trial”).

15 CONCLUSION

16   {19}   For the foregoing reasons, we reverse the district court’s order and remand for

17 further proceedings.




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1   {20}   IT IS SO ORDERED.

2                               __________________________________
3                               TIMOTHY L. GARCIA, Judge

4 WE CONCUR:


5 ___________________________________
6 JAMES J. WECHSLER, Judge


7 _________________________________
8 MICHAEL E. VIGIL, Judge




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