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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No. A-1-CA-35488

 5 ABRAHAM BACA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
 8 Sylvia Lamar, District Judge

 9 Hector H. Balderas, Attorney General
10 John Kloss, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Ben A. Ortega
14 Albuquerque, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VARGAS, Judge.

18   {1}    Defendant Abraham Baca appeals his conviction for aggravated driving under

19 the influence (DWI), under the impaired to the slightest degree standard, contrary to
 1 NMSA 1978, Section 66-8-102(A), (D)(3) (2008, amended 2016). On appeal,

 2 Defendant raises two challenges. First, Defendant argues there is insufficient evidence

 3 for a conviction because the State failed to establish a nexus between Defendant’s

 4 driving and impairment from alcohol consumption. Second, Defendant contends the

 5 district court erred when it declined to sanction the State for its failure to collect

 6 evidence when officers intentionally turned off their audio recording devices for

 7 approximately ten minutes during the investigation. We affirm Defendant’s

 8 conviction.

 9 I.      BACKGROUND

10   {2}   At 2:10 a.m. on May 2, 2010, Sergeant Martin Trujillo, then a supervisor with

11 the DWI Unit of the Rio Arriba County Sheriff’s Office, drove up behind the vehicle

12 driven by Defendant, which was weaving within its lane. Sergeant Trujillo followed

13 Defendant and observed his driving behavior for approximately one minute. During

14 that time, Defendant twice crossed the yellow center line and returned to his lane of

15 travel. On a third occasion, Defendant crossed over the yellow center line into the

16 oncoming traffic lane by about three-quarters the width of his vehicle and continued

17 there for thirteen seconds until Sergeant Trujillo turned on his emergency lights and

18 initiated the traffic stop. After Sergeant Trujillo engaged his emergency lights,

19 Defendant continued to drive over the yellow center line for an additional seven



                                              2
 1 seconds. At the time of the stop, Sergeant Trujillo was accompanied by Deputy Jose

 2 Martinez, also with the Rio Arriba County Sheriff’s Office’s DWI Unit. Deputy

 3 Martinez was driving in a separate patrol vehicle behind Sergeant Trujillo and also

 4 observed Defendant’s vehicle leave its lane of travel. Once Defendant had pulled over

 5 and stopped, Sergeant Trujillo approached the driver’s side of the vehicle. There were

 6 two passengers in the vehicle with Defendant and Sergeant Trujillo detected the smell

 7 of alcohol coming specifically from Defendant as well as from his vehicle. Sergeant

 8 Trujillo testified that Defendant had bloodshot, watery eyes and slurred his speech.

 9 Sergeant Trujillo further observed three to four sealed alcohol containers in the

10 vehicle. Deputy Martinez, participating as a secondary or backup officer for Sergeant

11 Trujillo, approached the passenger side of the vehicle, but did not speak with

12 Defendant and did not notice his smell, eyes, or speech. Deputy Martinez did,

13 however, note that Defendant’s vehicle smelled of alcohol.

14   {3}   At the time of the stop, Defendant was employed as a New Mexico State Police

15 officer. Sergeant Trujillo immediately recognized Defendant as a State Police officer,

16 testifying he was “stunned” and “blown away.” Upon realizing they had pulled over

17 a State Police officer, Sergeant Trujillo testified that he and Deputy Martinez turned

18 off their audio recording devices in order to discuss what to do. During the

19 approximately ten-minute period that their audio recording devices were turned off,



                                             3
 1 there was no interruption in both officers’ dash camera video recordings. While their

 2 audio recording devices were off, Sergeant Trujillo used Deputy Martinez’s cell phone

 3 to contact the State Police office and request that a supervisor come to the scene.

 4 Sergeant Trujillo and Deputy Martinez then turned their audio recording devices back

 5 on. Soon thereafter, Sergeant Arcenio Chavez, a New Mexico State Police supervisor,

 6 arrived at the scene, but declined to participate in the investigation.

 7 Sergeant Trujillo then asked Defendant to step out of the vehicle to perform field

 8 sobriety tests. Somewhere between thirty-seven and forty-eight minutes passed from

 9 the time Sergeant Trujillo first spoke to Defendant and the time Defendant exited his

10 vehicle to perform the field sobriety tests. As Defendant stepped out of his vehicle, he

11 held onto the door and dropped his cell phone. After Defendant was outside his

12 vehicle, Sergeant Trujillo again detected the odor of alcohol coming from Defendant.

13 Sergeant Trujillo administered three standardized field sobriety tests—the horizontal

14 gaze nystagmus (HGN), the walk-and-turn test, and the one-leg stand test—as well as

15 a finger counting test, all of which Defendant performed contrary to instructions. After

16 Sergeant Trujillo administered the field sobriety tests, Defendant admitted to Sergeant

17 Trujillo that he had consumed “maybe two, maybe three” beers. Deputy Martinez

18 observed the field sobriety test portion of the investigation from approximately fifteen

19 to twenty-five feet away and testified he did not hear Defendant admit to consuming



                                              4
 1 alcohol. Sergeant Trujillo concluded Defendant was driving while under the influence

 2 of alcohol and arrested him for DWI. At the scene, Defendant agreed to take a breath

 3 alcohol test but later refused. During an inventory search of Defendant’s vehicle after

 4 the arrest, Deputy Martinez recovered opened and unopened beer cans from inside the

 5 vehicle and discovered one of the passengers in possession of an open beer. Sergeant

 6 Arcenio Chavez, of the State Police, was on scene from the beginning of the field

 7 sobriety test portion of the investigation until the time Defendant was taken into

 8 custody.

 9   {4}   Defendant was charged with aggravated driving under the influence, a violation

10 of Section 66-8-102(A), (D)(3), making it “unlawful for a person who is under the

11 influence of intoxicating liquor to drive a vehicle[,]” aggravated by “refusing to

12 submit to chemical testing[.]” Following a bench trial, the district court found

13 Defendant guilty, and Defendant appeals.

14 II.     DISCUSSION

15   {5}   Defendant argues that because he was left unattended and unobserved by police

16 in his vehicle for an extended period of time with several containers of alcohol, there

17 is insufficient evidence to establish the nexus between his driving and impairment

18 from alcohol consumption that is necessary for a DWI conviction. Defendant suggests

19 he could have consumed the alcohol after being pulled over. Defendant further argues



                                              5
 1 that because of a rumored affair between himself and the spouse of Deputy Martinez,

 2 the officers acted in bad faith and treated him “differently” when they turned off their

 3 audio recording devices during the portions of the investigation they otherwise

 4 captured on video. While not completely clear, we surmise Defendant suggests that

 5 the officers coordinated their stories and conspired to arrest him for DWI to punish

 6 him for the rumored affair.

 7 A.      Sufficient Evidence Exists to Support Defendant’s Conviction for
 8         Aggravated DWI

 9   {6}   When reviewing for sufficiency, we view the evidence in the light most

10 favorable to the verdict, and then determine “whether the evidence viewed in this

11 manner could justify a finding by any rational trier of fact that each element of the

12 crime charged has been established beyond a reasonable doubt.” State v. Trossman,

13 2009-NMSC-034, ¶ 16, 146 N.M. 462, 212 P.3d 350 (internal quotation marks and

14 citation omitted). We “indulg[e] all reasonable inferences and resolv[e] all conflicts

15 in the evidence in favor of the verdict.” State v. Chavez, 2009-NMSC-035, ¶ 11, 146

16 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted). In reviewing

17 for sufficiency, “[t]he reviewing court does not weigh the evidence or substitute its

18 judgment for that of the fact finder as long as there is sufficient evidence to support

19 the verdict.” Id. (internal quotation marks and citation omitted).




                                              6
 1   {7}   The test for sufficiency is “whether substantial evidence of either a direct or

 2 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt

 3 with respect to every element essential to a conviction.” State v. Astorga, 2015-

 4 NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotation marks and citation omitted).

 5 “Substantial evidence is defined as that evidence which is acceptable to a reasonable

 6 mind as adequate support for a conclusion.” State v. Flores, 2010-NMSC-002, ¶ 2,

 7 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted).

 8   {8}   Pursuant to Section 66-8-102, New Mexico law requires that the state prove a

 9 defendant was impaired at the time he or she drove. Under the “impaired to the

10 slightest degree” standard, “[i]n order to convict under [Section 66-8-102(A)], a court

11 must find that the defendant was less able to the slightest degree, either mentally or

12 physically, or both, to exercise the clear judgment and steady hand necessary to handle

13 a vehicle with safety to the driver and the public as a result of drinking the liquor.”

14 State v. Gurule, 2011-NMCA-042, ¶ 7, 149 N.M. 599, 252 P.3d 823 (internal

15 quotation marks and citation omitted).

16   {9}   Defendant argues that, because the officers left him unattended in his vehicle

17 for an extended period of time with several containers of alcohol while they contacted

18 State Police and discussed how to proceed with the stop, the State is unable to prove

19 that he did not become intoxicated after he was stopped by officers. Defendant argues



                                              7
 1 that “the [S]tate focused its case in chief on the results of [the] roadside sobriety tests

 2 and other observations after [Defendant] got out of his vehicle” and “never addressed

 3 the fact that they had left [Defendant] in his vehicle for well over a half an hour, and

 4 perhaps nearly a whole hour, unattended and unobserved.”

 5   {10}   In this case, the State presented substantial evidence that Defendant drove while

 6 under the influence of alcohol and that his driving ability was impaired at least to the

 7 slightest degree based solely on the officers’ observations of Defendant’s driving and

 8 physical condition during his initial encounter with Sergeant Trujillo. That evidence

 9 included the testimony of Sergeant Trujillo and Deputy Martinez who both witnessed

10 Defendant driving his vehicle, weaving within his lane, and crossing the yellow center

11 line on more than one occasion, as well as Sergeant Trujillo’s testimony that during

12 his initial contact with Defendant, Defendant smelled of alcohol, had bloodshot,

13 watery eyes, and slurred his speech.

14   {11}   Defendant relies on State v. Mailman, 2010-NMSC-036, ¶ 22, 148 N.M. 702,

15 242 P.3d 269 and State v. Cotton, 2011-NMCA-096, ¶ 14, 150 N.M. 583, 263 P.3d

16 925 to support his argument that there is insufficient evidence to prove a nexus

17 between his driving and impairment from alcohol consumption. In Mailman, our

18 Supreme Court considered the propriety of the defendant’s DWI conviction on

19 alternative theories of actually driving while intoxicated and being in actual physical



                                                8
 1 control of a vehicle while intoxicated. 2010-NMSC-036, ¶ 1. In that case, the

 2 defendant argued that the state did not present sufficient evidence that he drove his

 3 vehicle while impaired. When police found him sitting in his car in a convenience

 4 store parking lot with an open can of beer on the center console, smelling of a strong

 5 odor of alcohol, the defendant admitted he had consumed five cans of a six-pack of

 6 beer and thrown the empty cans out the window along the highway as he drove to the

 7 convenience store. Id. ¶¶ 2, 24. Further, the defendant was disoriented, confused, had

 8 bloodshot, watery eyes, and had difficulty maintaining his balance. Id. ¶ 24. The

 9 district court found substantial evidence to support the defendant’s DWI conviction

10 for driving under the influence prior to parking at the convenience store, but remanded

11 the matter for a new trial because the general verdict form submitted to the jury did

12 not allow the court to ascertain which of the two theories were the basis of the

13 defendant’s conviction. Id. ¶¶ 24, 28.

14   {12}   Defendant quotes Mailman, pointing out that “[a]ctual physical control is not

15 necessary to prove DWI unless there are no witnesses to the vehicle’s motion and

16 insufficient circumstantial evidence to infer that the accused actually drove while

17 intoxicated.” Id. ¶ 28. Mailman, however, is of no assistance to Defendant, as there

18 is uncontroverted evidence that Defendant was operating his vehicle in a manner that

19 indicated he was impaired. While the officer in Mailman did not witness the defendant



                                              9
 1 driving his vehicle, Sergeant Trujillo and Deputy Martinez witnessed Defendant

 2 driving his vehicle, weaving within his lane and crossing the yellow center line, all

 3 actions that were recorded on Sergeant Trujillo’s dash camera. Therefore, Mailman’s

 4 discussion of actual physical control is irrelevant. The State has established Defendant

 5 was actually driving the vehicle, and Defendant’s reliance on Mailman’s discussion

 6 of actual physical control is misplaced.

 7   {13}   Defendant also analogizes this case to Cotton, claiming Defendant could have

 8 parked and then consumed the beer. 2011-NMCA-096, ¶ 14. In Cotton, this Court

 9 reversed the defendant’s conviction for aggravated DWI because the state provided

10 no evidence at trial that the defendant actually drove while impaired. Id. ¶ 1. The

11 defendant in Cotton was parked on the side of the road and was seated in the driver’s

12 seat with no keys in the ignition when the officer approached him. Id. ¶¶ 4-5. While

13 the defendant admitted to having consumed alcohol one hour earlier and performed

14 poorly on the field sobriety tests, suggesting he was impaired at the time he came into

15 contact with the officer, there was no evidence that the defendant drove while

16 impaired and no indication of how long the vehicle had been parked in that location.

17 Id. ¶ 14. Because there was nothing linking the defendant’s impairment with any prior

18 driving, we noted in Cotton that “[the d]efendant could have parked and then

19 consumed the beer.” Id. We concluded that the state had “failed to establish that [the



                                              10
 1 d]efendant drove after he had consumed alcohol and after alcohol had impaired his

 2 ability to drive[.]” Id.

 3   {14}   In Cotton, there were no witnesses to the vehicle’s motion, and there was

 4 insufficient circumstantial evidence to allow for an inference that the accused actually

 5 drove while intoxicated. Id. ¶ 13. Cotton is therefore distinguishable. Rather than

 6 happening upon Defendant in a parked car, without any idea of how long he had been

 7 there, Sergeant Trujillo and Deputy Martinez witnessed Defendant’s erratic driving,

 8 prompting them to stop him. In addition, Sergeant Trujillo testified that when he

 9 initially made contact with Defendant, Defendant smelled of alcohol, had bloodshot,

10 watery eyes, and slurred his speech. These facts taken together are sufficient to

11 support an inference that Defendant drove while intoxicated.

12 B.       The District Court Did Not Err by Denying Defendant’s Motion to
13          Dismiss, to Suppress, or for Sanctions Due to the State’s Failure to Collect
14          Evidence

15   {15}   Finally, Defendant argues that the district court erred in failing to sanction the

16 State by dismissing the case or awarding other sanctions when officers intentionally

17 turned off their audio recording devices for approximately ten minutes during the

18 investigation. Defendant characterizes the officers’ actions as an intentional

19 destruction of, or intentional failure to, collect evidence and asserts the district court

20 should have excluded the officers’ testimony, or considered the unrecorded audio



                                                11
 1 evidence beneficial to Defendant and presumed the officers’ testimony to be

 2 unreliable pursuant to State v. Ware, 1994-NMSC-091, ¶ 23, 118 N.M. 319, 881 P.2d

 3 679.

 4   {16}   We review the denial of a motion for sanctions for an abuse of discretion. See

 5 State v. Duarte, 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027. “An abuse of

 6 discretion occurs when the ruling is clearly against the logic and effect of the facts and

 7 circumstances of the case. We cannot say the [district] court abused its discretion by

 8 its ruling unless we can characterize it as clearly untenable or not justified by reason.”

 9 Id. (internal quotation marks and citation omitted). A district court also abuses its

10 discretion when it uses an incorrect legal standard or misapplies the law. See Brooks

11 v. Norwest Corp., 2004-NMCA-134, ¶ 7, 136 N.M. 599, 103 P.3d 39. In determining

12 whether the district court abused its discretion, “[w]e view the facts in the manner

13 most favorable to the prevailing party and defer to the district court’s findings of fact

14 if substantial evidence exists to support those findings[,]” but we review the

15 application of the law to the facts de novo. State v. Hubble, 2009-NMSC-014, ¶ 5, 146

16 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted).

17   {17}   Our Supreme Court has adopted a test “to determine whether the [s]tate should

18 be sanctioned for failure to gather evidence from a crime scene” that considers both

19 the interest of the defendant in obtaining a fair trial and the interest of the state in



                                               12
 1 engaging in effective “law enforcement, convicting guilty defendants, and revealing

 2 the truth in criminal proceedings.” Ware, 1994-NMSC-091, ¶ 23. “First, as a threshold

 3 matter the evidence that the [s]tate failed to gather from the crime scene must be

 4 material to the defendant’s defense.” Id. ¶ 25. “If the evidence is material to the

 5 defendant’s defense, then the conduct of the investigating officers is considered” to

 6 determine whether the officers acted in bad faith or were grossly negligent. Id. ¶ 26.

 7   {18}   Whether evidence is material is a question of law. See id. ¶ 25. “Evidence is

 8 material only if there is a reasonable probability that, had the evidence been available

 9 to the defense, the result of the proceeding would have been different.” Id. (alteration,

10 internal quotation marks, and citations omitted). “A reasonable probability is a

11 probability sufficient to undermine confidence in the outcome.” Id. (internal quotation

12 marks and citations omitted).

13   {19}   Defendant speculates that the officers turned off their audio recording devices

14 to discuss the fact that Defendant was rumored to be having an affair with the wife of

15 Deputy Martinez and to formulate a plan to retaliate against Defendant for the alleged

16 affair. Initially, we note that Defendant’s hypothesis about the content of the officers’

17 conversation seems unlikely in light of their decision to contact a supervisor of the

18 State Police to participate in the investigation. Presumably, if the officers intended to

19 retaliate against Defendant, they would not have invited a supervisor from



                                              13
 1 Defendant’s department to participate in the investigation. Further, Defendant’s

 2 speculation was based on the perceived retaliatory motive of Deputy Martinez.

 3 However, Deputy Martinez was the nonarresting officer and, though he testified to

 4 having witnessed the erratic driving confirmed by the dash camera video, he also

 5 testified that he did not witness Defendant’s physical condition—namely his

 6 bloodshot, watery eyes, slurred speech, and smell of alcohol—supporting his

 7 conviction. Deputy Martinez also testified that he didn’t believe the rumors. Sergeant

 8 Trujillo, the arresting officer, testified he hadn’t heard the rumors about the purported

 9 affair. Thus, we conclude Defendant has failed to demonstrate that any unrecorded

10 conversation between Sergeant Trujillo and Deputy Martinez was material to his

11 defense.

12   {20}   Because Defendant has not satisfied the first prong of the Ware test, we need

13 not consider the second prong concerning the culpability of the officers’ conduct in

14 turning off their audio recording devices. See id. ¶¶ 25-26 (stating that materiality is

15 a “threshold matter” and that the investigating officer’s conduct is considered only

16 “[i]f the evidence is material to the defendant’s defense”). Accordingly, we determine

17 that the district court did not err by denying Defendant’s motion to dismiss, to

18 suppress, or for sanctions due to the State’s alleged destruction of or failure to collect

19 evidence.



                                               14
1 III.     CONCLUSION

2   {21}   We affirm Defendant’s conviction.

3   {22}   IT IS SO ORDERED.


4
5                                        JULIE J. VARGAS, Judge

6 WE CONCUR:


7
8 STEPHEN G. FRENCH Judge


 9
10 HENRY M. BOHNHOFF, Judge




                                           15
