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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 17:14:15 2014.10.29

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-101

Filing Date: July 15, 2014

Docket No. 32,861

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JESUS MUNOZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

Templeman & Crutchfield, P.A.
C. Barry Crutchfield
Lovington, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}      Jesus Munoz (Defendant) was convicted of homicide by vehicle (reckless driving)
pursuant to NMSA 1978, Section 66-8-101(A), (C) (2004), and reckless driving pursuant to
NMSA 1978, Section 66-8-113(A) (1987), for his involvement in an automobile collision
that killed a passenger in the other car. Defendant appeals, alleging there was insufficient
evidence to support the verdicts. In reviewing the evidence with the proper deference to the
jury verdict, we conclude that Defendant’s disregard of the warning from the Lovington

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police, veering his vehicle into the crash zone, laughing, and speeding provide sufficient
evidence for a rational jury to find that Defendant acted recklessly. We affirm.

BACKGROUND

{2}     The evidence is being viewed in the light most favorable to the verdicts. State v.
Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. On October 6, 2008,
Defendant was involved in a collision in Lovington, New Mexico, that killed a passenger in
the other car. Prior to the fatal collision, Defendant drove from Hobbs, New Mexico, to
Lovington on Highway 18. Chip Marks was also driving on Highway 18 towards Lovington
and, as he was attempting to merge into the right lane, Defendant sped by in the right lane.
Marks observed Defendant pass other cars and, concerned for the Defendant’s safety, called
the Lovington Police Department and reported that Defendant’s car was speeding and
passing other cars.

{3}      Officers Brackeen and Macias of the Lovington Police Department responded to
Marks’ report and conducted a traffic stop, pulling Defendant over within the Lovington city
limits. Although Officer Brackeen did not observe the Defendant speeding or passing cars,
Defendant admitted to Officer Brackeen he had been driving eighty miles per hour. Officer
Brackeen gave the Defendant a verbal warning and told him to “slow down before he got
somebody hurt.” Furthermore, Officer Brackeen told Defendant to follow the forty-five mile
per hour speed limit and advised him the speed limit would decrease from forty-five to
thirty-five miles per hour. Approximately two minutes after the traffic stop was concluded,
the Officers received notification of the fatal collision.

{4}     One to one and one-half miles from where the traffic stop occurred, Avenue F
intersects with Highway 18. Francisco Trejo was driving on Avenue F with his passenger
Cruzina Ruiz. They arrived at a stop sign located at the intersection of Avenue F and
Highway 18. At that point, Trejo prepared to cross the intersection. Before Trejo began
crossing Highway 18, he believed the cars approaching on Highway 18 were at a sufficient
distance to allow a safe crossing. While crossing, Trejo suddenly became aware of
Defendant’s car and the imminent possibility of the two cars colliding. Trejo attempted to
avoid Defendant by accelerating. Defendant, driving in the left lane, might have avoided the
collision by veering to the left towards the traffic lanes heading in the opposite direction
(Trejo’s car was moving to Defendant’s right). Instead, Defendant veered his car to the right,
towards Trejo’s car. In the moments before the collision, Trejo testified that Defendant
appeared to be laughing as he veered into Trejo’s accelerating car. Defendant crashed into
the passenger side of Trejo’s car, where Ruiz was located. Ruiz died as a result of the
injuries she sustained from the collision.

{5}     At the physical location of the collision, the speed limit was thirty-five miles per
hour. According to the accident reconstruction report conducted by the New Mexico State
Police, Defendant was traveling between fifty-four and fifty-nine miles per hour before he
applied the brakes and thirty-seven to forty miles per hour at the time of impact. These

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estimates were based on the examination of the front brakes of the Defendant’s car by the
police. Although not examined during the investigation, the testimony established that, had
the rear brakes been fully functioning, Defendant’s car could have been traveling at an even
higher rate of speed.

{6}     The State charged Defendant with vehicular homicide by reckless driving and
misdemeanor reckless driving. At trial, the district court denied Defendant’s motion to
dismiss charges based upon the failure of the State to provide sufficient evidence to support
the required element of recklessness. A jury convicted Defendant of both crimes. Defendant
timely appealed the jury verdict.

STANDARD OF REVIEW

{7}      In reviewing the sufficiency of the evidence, the court determines “whether
substantial evidence of either a direct or circumstantial nature exists to support a verdict of
guilt beyond a reasonable doubt with respect to every element essential to a conviction.”
State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (internal quotation
marks and citation omitted). Evidence is viewed by the appellate court in “the light most
favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts
in the evidence in favor of the verdict.” Cunningham, 2000-NMSC-009, ¶ 26. This Court
“does not weigh the evidence or substitute its judgment for that of the fact finder as long as
there is sufficient evidence to support the verdict.” State v. Chavez, 2009-NMSC-035, ¶ 11,
146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted). In short, the
court determines if “a rational jury could have found beyond a reasonable doubt the essential
facts required for a conviction.” Garcia, 2011-NMSC-003, ¶ 5 (internal quotation marks and
citation omitted).

DISCUSSION

{8}     Defendant claims the evidence is insufficient to establish the legal requirement that
he acted in a reckless manner by disregarding the rights of others. Recklessness is a statutory
element in vehicular homicide by reckless driving and misdemeanor reckless driving. The
homicide by vehicle statute requires the State to prove beyond a reasonable doubt that the
defendant is guilty of reckless driving pursuant to Section 66-8-113. See § 66-8-101(C).
Reckless driving is defined in Section 66-8-113(A) as driving “carelessly and heedlessly in
willful or wanton disregard of the rights or safety of others and without due caution and
circumspection and at a speed or in a manner so as to endanger or be likely to endanger any
person or property.”

{9}    The district court instructed the jury that a conviction for vehicular homicide by
reckless driving required a finding that the Defendant “operated a motor vehicle . . . in a
reckless manner” and further defined reckless as driving with “willful disregard of the safety
of others and at a speed or in a manner that endangered or was likely to endanger any
person.” UJI 14-240 NMRA; UJI 14-241 NMRA. The jury instruction for the lesser-

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included count of reckless driving required the jury to find Defendant “drove carelessly and
heedlessly in willful or wanton disregard of the rights or safety of others and without due
caution and circumspection and at a speed or in a manner so as to endanger or be likely to
endanger any person or property[.]” UJI 14-4504 NMRA. Recklessness, being an element
of both crimes, is recognized to be the operation of a vehicle in such a way that is likely to
endanger others and to willfully disregard the rights and safety of others. See State v.
Wildgrube, 2003-NMCA-108, ¶ 7, 134 N.M. 262, 75 P.3d 862.

{10} Defendant concedes that the State presented sufficient evidence to establish he was
speeding at the time of the collision, but argues that the evidence is insufficient to prove
Defendant willfully disregarded the rights of others. In support of his position, Defendant
correctly argues that speeding alone is insufficient to constitute recklessness. See State v.
Clemonts, 2006-NMCA-031, ¶ 16, 139 N.M. 147, 130 P.3d 208; § 66-8-101(C) (“[S]peeding
. . . shall not per se be a basis for violation of [NMSA 1978,] Section 66-8-113 [(1987)]”).
But speeding can constitute recklessness if the speeding created a danger for others and
additional conduct establishes that a driver willfully disregarded the safety of others. State
v. Simpson, 1993-NMSC-073, ¶ 21, 116 N.M. 768, 867 P.2d 1150; see UJI 14-241 (defining
driving in a reckless manner as a “willful disregard of the safety of others and at a speed or
in a manner that endangered or was likely to endanger any person”). Thus, the central issue
to be addressed is whether sufficient evidence exists for a rational jury to find the Defendant
willfully disregarded the rights or safety of others.

{11} In State v. Ibn Omar-Muhammad, the driver sped upwards of 100 miles per hour and
intentionally ran police roadblocks during a high-speed police chase. 1985-NMSC-006, ¶¶
3, 10, 102 N.M. 274, 694 P.2d 922 (addressing and recognizing recklessness in a case that
also focused on depraved mind murder). Such facts were sufficient to establish recklessness.
Id. ¶ 26. In State v. Richerson, this Court held that driving seventy miles per hour through
a residential neighborhood with a speed limit of twenty-five to thirty-five miles per hour,
while driving on the wrong side of the road, was sufficient evidence of reckless driving to
allow the question to be submitted to the jury. 1975-NMCA-027, ¶¶ 35, 38, 87 N.M. 437,
535 P.2d 644. In State v. Sandoval, this Court upheld a conviction for vehicular homicide
by reckless driving. 1975-NMCA-096, ¶ 7, 88 N.M. 267, 539 P.2d 1029. Along with
speeding at the time of the accident, witnesses saw the driver revving the engine, speeding,
turning corners at high speeds, straddling lanes, and making illegal U-turns minutes before
the collision occurred. Id. This Court recognized the driver’s “course of conduct show[ed],
without doubt,” that the driver operated his vehicle with disregard for the rights and safety
of others. Id.

{12} Defendant’s primary argument is based on the premise that his actions were less
egregious than the courses of conduct held to be reckless in the prior New Mexico cases.
Essentially, Defendant argues that because he did not drive on the wrong side of the road or
run police roadblocks, insufficient evidence exists to establish the element of recklessness.
The State responds that recklessness does not have a bright-line threshold test, nor is there
a statutory list of unsafe actions constituting willful disregard for the rights of others. It

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asserts that a driver’s course of conduct does not have to be as egregious as driving twice the
speed limit in a residential neighborhood in order to establish a willful disregard for the
rights and safety of others.

{13} Defendant’s actions in this case were sufficient to establish recklessness. Prior to the
collision with Trejo, Marks observed Defendant driving above the speed limit and passing
other cars. In Sandoval, a driver’s actions leading up to the collision were considered as a
factor contributing to recklessness. 1975-NMCA-096, ¶ 7. As a result, it was proper for the
jury to consider the evidence presented about Defendant’s driving on Highway 18 as he
approached Lovington, when it was determining the reckless nature of his actions. More
importantly, just prior to the collision, Officer Brackeen warned Defendant “to slow down
before he got somebody hurt.” Officer Brackeen also informed Defendant that the current
speed limit was forty-five miles per hour and it would then be decreasing to thirty-five miles
per hour. The fact that the collision occurred just one to one and one-half miles from where
Officer Brackeen issued his verbal warning to Defendant is relevant to establish a
compelling and reasonable inference of whether Defendant willfully disregarded Officer
Brackeen’s warning. It is also reasonable for the jury to assess whether disregarding an
Officer’s warning to obey the upcoming speed limits constitutes a disregard for the rights
of others, given the additional dangers that speeding within the city limits imposes on
pedestrians and other motorists. The facts also established that Defendant was exceeding the
speed limit immediately before the collision occurred, traveling nineteen to twenty-four
miles per hour over the thirty-five mile per hour speed limit. [AB 4-5] Although speeding
alone cannot establish recklessness, it is one of many other contributing factors for the jury
to consider when addressing whether Defendant acted recklessly. See Richerson, 1975-
NMCA-027 ¶¶ 35, 38.

{14} Policy considerations also support the jury’s verdict in this case. “Part of the function
of police officers is to carry out community caretaking functions to enhance public safety.”
State v. Reynolds, 1993-NMCA-162, ¶ 8, 117 N.M. 23, 868 P.2d 668, rev’d on other
grounds, 119 N.M. 383, 890 P.2d 1315. Automobiles are “a dangerous instrumentality and
the improper use thereof creates a likelihood of serious menace to public safety and
authorizes the most stringent use of the government’s police power.” Johnson v. Sanchez,
1960-NMSC-029, ¶ 15, 67 N.M. 41, 351 P.2d 449. Pulling over a car in order to deter
speeding would logically promote public safety. However, an officer’s ability to effectively
promote public safety requires drivers to comply with the warnings of the officer, and the
monetary deterrence of issuing speeding tickets should not be the only tool at the disposal
of law enforcement to promote compliance with a warning. Because the effectiveness of a
warning to promote public safety partially depends on a driver’s compliance with the
warning, it would be detrimental to the public safety if drivers were allowed to totally
disregard an officer’s warning. This Court also recognizes that it is unreasonable to expect,
let alone require, absolute compliance with an officer’s public safety warning. Warnings of
this type naturally diminish over time. Nonetheless, Defendant’s failure to comply with
Officer Brackeen’s warning about the Lovington city speed limit, issued just minutes prior
to the collision, is further evidence of a willful and wanton disregard for the rights and safety

                                               5
of others.

{15} Other substantive evidence established that Defendant might have avoided the
collision by directing his car to the left of the Trejo vehicle. Instead, Defendant turned his
car to the right, towards Trejo’s car and the resulting collision. Defendant argued that it is
abnormal for motorists to veer left into oncoming traffic lanes in order to avoid a collision,
and thus Defendant’s decision to veer to the right was a natural reaction to an emergency.
This argument was an alternative view of the facts that was properly presented to the jury.
The jury’s resolution of this disputed factual issue could be decided in favor of either party,
and we must now presume that the jury agreed with the State’s factual position regarding the
evidence. Cunningham, 2000-NMSC-009, ¶ 26 (“[W]e must view the evidence in the light
most favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.”). By resolving this factual issue, it was also
reasonable for the jury to find that Defendant’s decision to veer his car into Trejo’s vehicle
was also reckless and an additional factor in establishing that he disregarded the rights and
safety of others. Furthermore, Trejo testified it appeared that Defendant was laughing as he
veered his car toward the Trejo vehicle. Laughing, in such a dire circumstance, can
reasonably be inferred to depict a disregard for the rights and safety of others.

{16} Admittedly, Defendant’s conduct might be considered less egregious than the driver
in Richerson who drove seventy miles per hour in a residential neighborhood on the wrong
side of the street. 1975-NMCA-027, ¶ 35. However, the State presented sufficient evidence
that Defendant disregarded the imminent warning issued by the police moments before the
collision, veered his car towards the ensuing collision while laughing, and continued to
speed at the time of the collision. Viewing this evidence in the light most favorable to the
verdict, we conclude there was sufficient evidence for a rational jury to find that Defendant
was driving recklessly when he willfully disregarded the rights and safety of others. We
affirm.

{17}    IT IS SO ORDERED.

                                                ____________________________________
                                                TIMOTHY L. GARCIA, Judge

WE CONCUR:


___________________________________
JAMES J. WECHSLER, Judge


____________________________________
MICHAEL D. BUSTAMANTE, Judge


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