 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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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. 29,989

10 WILBERT YELLOWMAN,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 J.K. Theodosia Johnson, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant



22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.
 1        Defendant appeals his conviction for driving while under the influence of

 2 intoxicating liquor or drugs. The notice proposed to affirm on the merits, and to

 3 reverse and remand for the limited purpose of correcting the judgment and sentence

 4 to reflect the jury’s verdict for a violation of NMSA 1978, Section 66-8-102(C)(1)

 5 (2008) rather than for a violation of Section 66-8-102(D)(1). Defendant filed a timely

 6 memorandum in opposition pursuant to a granted motion for extension of time. The

 7 State filed a timely response pursuant to a granted motion for clarification of time. We

 8 remain unpersuaded by Defendant’s arguments and therefore affirm on the merits.

 9 We also reverse and remand for clarification of sentence given that both parties agree

10 that this is appropriate. [MIO 2; Response 2]

11        Defendant continues to argue that there was a lack of substantial evidence to

12 support his DWI conviction. [DS 3] In particular, Defendant asserts that there was

13 a lack of evidence to show that he was “in control” of the vehicle and that he actually

14 drove the vehicle. [DS 3] Defendant refers to State v. Franklin, 78 N.M. 127, 428

15 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) in

16 support of his argument. [MIO 4]

17        We review the evidence to determine “whether substantial evidence of either

18 a direct or circumstantial nature exists to support a verdict of guilt beyond a

19 reasonable doubt with respect to every element essential to a conviction.” State v.


                                              2
 1 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e

 2 view the evidence in the light most favorable to supporting the verdict and resolve all

 3 conflicts and indulge all inferences in favor of upholding the verdict.” State v.

 4 Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the

 5 evidence, nor substitute our judgment for that of the fact-finder, so long as there is

 6 sufficient evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at

 7 1319.

 8         Defendant’s conviction for DWI requires findings that Defendant operated a

 9 motor vehicle; that, within three hours of driving, Defendant had an alcohol

10 concentration of .08 grams or more in one hundred milliliters of blood; and that the

11 alcohol concentration resulted from alcohol consumed before or while driving the

12 vehicle. [RP 1, 57, 70; MIO 2] See§ 66-8-102(C)(1).

13         The facts indicate that Deputy Sanchez was dispatched to a possible parked

14 drunk driver at a gas station. [DS 2; MIO 1] When he arrived at the station, Deputy

15 Sanchez saw a blue van that matched the dispatch description. [DS 2; MIO 1] Deputy

16 Sanchez testified that, upon approaching the van, he saw Defendant put his hands in

17 the location of the dash and then put them back down on his lap area. [DS 2; MIO 1]

18 Upon making contact with Defendant, Deputy Sanchez observed Defendant to have

19 red and bloodshot watery eyes and to smell strongly of alcohol. [DS 2; MIO 1]


                                              3
 1 During a pat-down search, Deputy Sanchez located the car keys in Defendant’s left

 2 front pants pocket. [DS 2; MIO 1] Defendant then performed poorly on field sobriety

 3 tests [DS 2; MIO 1] and submitted to an alcohol blood test, with results of .28 blood

 4 alcohol concentration. [DS 2; MIO 1-2]

 5        We hold that the foregoing facts support Defendant’s conviction for DWI. See

 6 State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985) (defining

 7 substantial evidence as that evidence which a reasonable person would consider

 8 adequate to support a defendant’s conviction). Although the keys were not in the

 9 ignition [DS 3] and Defendant was not actually observed driving the vehicle [DS 3;

10 MIO 4], the jury could have reasonably surmised that Defendant was nonetheless

11 operating the vehicle. As instructed by the jury [RP 58], a person is “operating” a

12 motor vehicle if the person is driving the motor vehicle or in actual physical control,

13 whether or not the vehicle is moving. See, e.g., Boone v. State, 105 N.M. 223, 224,

14 731 P.2d 366, 367 (1986) (holding that “drive” means either driving or exercising

15 actual physical control of a vehicle). And in the present case, given that Defendant

16 was sitting in the driver’s seat and the keys were in his pocket, a jury could have

17 reasonably surmised that Defendant had actual physical control of the vehicle. See

18 generally State v. Sims, 2008-NMCA-017, ¶ 1, 143 N.M. 400, 176 P.3d 1132 (filed

19 2007) (holding that the defendant, who was either asleep or passed out, had actual


                                              4
 1 physical control of the vehicle because the location of the ignition key on the

 2 passenger seat would allow the defendant sitting in the driver's seat to start the

 3 automobile and drive away at any time), cert. granted, 2008-NMCERT-001, 143 N.M.

 4 399, 176 P.3d 1131.

 5        Finally, while the judgment and sentence [RP 71] recites Defendant’s

 6 conviction for a violation of Section 66-8-102(D)(1) (blood alcohol concentration of

 7 .16 or more), the jury was only asked to convict Defendant for a violation of Section

 8 66-08-102(C)(1) (blood alcohol concentration of .08 or more). [RP 57] We

 9 accordingly reverse Defendant’s conviction for a violation of Section 66-8-102(D)(1)

10 and to remand with instructions that the judgment and sentence be corrected to reflect

11 Defendant’s conviction for a violation of Section 66-8-102(C)(1). See, e.g., State v.

12 Villa, 2004-NMSC-031, ¶ 9, 136 N.M. 367, 98 P.3d 1017 (recognizing when it is

13 appropriate for an appellate court to remand a case for entry of judgment of conviction

14 and re-sentencing).

15 CONCLUSION

16        Based on the foregoing discussion, we affirm the jury’s verdict for a violation

17 of Section 66-8-102(C)(1), and reverse and remand for the limited purpose of

18 correcting the sentence to reflect the jury’s verdict.

19        IT IS SO ORDERED.


                                              5
1
2                            MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:


4
5 JONATHAN B. SUTIN, Judge


6
7 ROBERT E. ROBLES, Judge




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