 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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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. 28,801

10 JESSE MANFORD CHAVEZ,

11          Defendant-Appellant

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Frank H. Allen, District Judge

14 Gary K. King, Attorney General
15 Farhan Khan, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Carlos Ruiz de la Torre, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant appeals his convictions for great bodily injury by vehicle in violation

 2 of NMSA 1978, Section 66-8-101 (2004), reckless driving in violation of NMSA

 3 1978, Section 66-8-113 (1987), leaving the scene of an accident involving death or

 4 great bodily harm in violation of NMSA 1978, Section 66-7-201 (1989), and leaving

 5 the scene of an accident involving damage to a vehicle in violation of NMSA 1978,

 6 Section 66-7-202 (1978). Because we conclude that error in the admission of

 7 evidence at Defendant’s trial was not harmless, we reverse Defendant’s convictions.

 8 BACKGROUND

 9        The charges in this case arose from an incident in which a Chevrolet Blazer was

10 involved in two accidents within approximately half a mile of one another. The driver

11 fled the scene on foot after the second accident, leaving the Blazer where it had

12 crashed. Based on information found in the vehicle and through radio contact with

13 the motor vehicle division, using normal police procedure, the police determined that

14 the Blazer belonged to Nancy Chavez. Deputy Charles Haycox contacted Ms. Chavez

15 by telephone the evening of the accident, and during that conversation, Ms. Chavez

16 informed Deputy Haycox that her son, Defendant, had been driving the Blazer at the

17 time of the accident. Two days later, Deputy Haycox called Ms. Chavez once more,

18 and Ms. Chavez again told the deputy that Defendant was driving the Blazer at the




                                              2
 1 time of the accident. She also stated that Defendant had sustained minor injuries, that

 2 he had tried to avoid the accident, and that the accident was not his fault.

 3        At trial, the primary contested issue was whether Defendant was the person

 4 driving the Blazer. Paul Chavez, the driver of the first vehicle the Blazer hit, was

 5 unable to identify Defendant in court as the driver of the Blazer. However, he testified

 6 that he caught a “glimpse” of Defendant’s face at the scene and evidence was

 7 presented that he selected a photograph of Defendant from a photo array shown to him

 8 two weeks after the accident. Loreno Garcia, Jr., the driver of the second vehicle the

 9 Blazer hit, stated that he did not get a good look at the driver of the Blazer, that the

10 driver could have been Defendant, but that it was hard to say and that he could not say

11 for certain that Defendant was the driver who hit him. Jimmy Sena, a witness to the

12 second accident, was able to identify Defendant in court as the person involved in the

13 accident. However, Mr. Sena admitted that at the time of the accident with regard to

14 distinguishing marks or tattoos, “I really didn’t look at [the driver]. I didn’t pay

15 attention that well.” The description Mr. Sena provided to the police described

16 Defendant’s hair as light brown and apparently did not indicate that Mr. Sena saw the

17 various tattoos on Defendant’s chest and back. Another witness to the second

18 accident, Daniel Corona, who knows Defendant and his family, testified that it was

19 Defendant’s father who was driving the Blazer.


                                              3
 1        The State called Ms. Chavez to testify. After a few preliminary questions, the

 2 State asked whether Ms. Chavez was the owner of the Blazer. Ms. Chavez said she

 3 was, but that she was not driving the vehicle when it was wrecked. The State then

 4 asked whether Ms. Chavez recognized certain information on a form that described

 5 her vehicle. Ms. Chavez responded that she could not remember and stated that the

 6 reason she had difficulties remembering things from the relevant time period was

 7 because of personal problems. The State asked whether Ms. Chavez knew who was

 8 driving the Blazer on the date in question, and Ms. Chavez said she did not know.

 9 The State asked if Defendant had permission to drive it, and Ms. Chavez said, “No.

10 My husband had it at home. It was not working.” The State again asked if Defendant

11 had permission to use the Blazer, and Ms. Chavez said her husband would have to be

12 the one to answer that question because she was at work that day. The State asked if

13 Defendant was ever allowed to use the vehicle, and Ms. Chavez said, “[Yes]. My

14 husband did when it was fixed, but it hadn’t been fixed for a couple of months.” After

15 several questions about Defendant’s father, the State asked whether Ms. Chavez

16 remembered being contacted by the Sheriff’s Department on the day of the accident.

17 Ms. Chavez said she did not. The State asked if Ms. Chavez remembered Deputy

18 Haycox calling her that day, and she said, “No.” The State asked if she remembered

19 being contacted by the deputy two days later, and Ms. Chavez gave a response that is


                                             4
 1 transcribed as “(No audible response.)” The State began to ask if Ms. Chavez

 2 remembered telling Deputy Haycox something during their phone conversation, but

 3 defense counsel interjected and objected on grounds of hearsay. The district court

 4 asked if the State’s question was being asked for purposes of impeachment, and the

 5 State said it was.

 6        A brief bench conference was held, during which the court excused the jury to

 7 hear further argument. Neither the district court nor the State indicated specifically

 8 which of Ms. Chavez’s in-court statements was inconsistent with her prior out-of-

 9 court statements such that she could be impeached with the prior statements. The

10 State tendered evidence that Ms. Chavez would testify that she did not remember

11 speaking to Deputy Haycox about the accident and that she did not remember making

12 the statements he said she made. Defense counsel objected stating that Ms. Chavez’s

13 prior statements were hearsay and did not fall within the exception provided by Rule

14 11-801(D)(1)(a) NMRA, which only permits the admission of prior inconsistent

15 statements if the statements were made under oath. The district court asked whether

16 an out-of-court statement is a prior inconsistent statement when the witness says she

17 does not remember the prior conversation. Defendant did not directly address the

18 substance of this question, saying that the testimony was “essentially impeachment”

19 and that the State was trying to impeach Ms. Chavez, but the jury would use the


                                             5
 1 testimony as substantive evidence which would not be proper because the prior

 2 statements were not under oath. The State argued that it could impeach Ms. Chavez

 3 because she claimed to have no memory of the prior statements and that pursuant to

 4 Rule 11-613 NMRA, the statements would then be admissible through Deputy

 5 Haycox. Defendant argued that if the prior statements were offered, the State could

 6 try to refresh Ms. Chavez’s recollection, but that the prior statements could not be

 7 relayed to the jury. The district court ruled that it would allow the questioning of Ms.

 8 Chavez as impeachment and then permitted Deputy Haycox to testify about the

 9 conversation as extrinsic impeachment evidence.

10        The jury was brought back into the courtroom and Ms. Chavez testified that she

11 did not remember speaking to Deputy Haycox. The following colloquy took place.

12        Q.    Okay. Do you remember when [Deputy Haycox] called you on
13        June 10th at 9:30 in the evening that you told him that [Defendant] had
14        been driving a Blazer that day?

15        A.     No.

16        Q.    Do you remember telling him that you would try to find
17        [Defendant] so that he could talk to him about the wreck?

18        A.     No.

19        Q.    Do you remember talking to him again two days later on June 12th
20        at about 9:35 in the evening?

21        A.     No. I don’t remember.


                                              6
 1        Q.     Do you remember telling him at that time that [Defendant] had
 2        told you that he was driving the Blazer?

 3        A.     No.

 4        Q.     Do you remember telling him that [Defendant] had told you that he was
 5        in an accident?

 6        A.     No.

 7        Q.    Do you remember telling Deputy Haycox that [Defendant] said he
 8        had received minor scrapes and scratches in the accident?

 9        A.     No. I don’t remember.

10        Q.     And that he hurt his knee?

11        A.     (Shaking head.)

12        Q.    Do you remember telling Deputy Haycox that [Defendant] said it
13        wasn’t his fault?

14        A.     No, I don’t remember.

15        Q.     And that [Defendant] tried to prevent it from occurring?

16        A.     No.

17        Q.     So you don’t remember talking to the deputy at all?

18        A.     I can’t remember right now.

19 Ms. Chavez explained that the reason she was having difficulties with her memory

20 was because the year of the accident, her husband, her sister, and her brother died, and

21 that their deaths had caused Ms. Chavez stress and anxiety that required medication.


                                               7
 1 She stated that she did not deny having a conversation with Deputy Haycox, only that

 2 she could not remember whether she had such a conversation. Deputy Haycox later

 3 testified as to the substance of his conversations with Ms. Chavez.

 4        Defendant was convicted and now appeals, arguing that (1) the admission of

 5 Ms. Chavez’s prior out-of-court statements as impeachment was erroneous and that

 6 the error was not harmless, (2) there was insufficient evidence on which a jury could

 7 find beyond a reasonable doubt that Defendant was the driver of the Blazer, and (3)

 8 Defendant’s right to be free of double jeopardy was violated by his conviction of two

 9 charges that should have been merged into one offense.

10 DISCUSSION

11 Impeachment of Ms. Chavez with Her Prior Out-of-Court Statements

12        Defendant contends that the district court erred in admitting evidence of the out-

13 of-court statements Ms. Chavez made to Deputy Haycox regarding the accident.

14 Defendant contends that the use of this evidence for purposes of impeachment was

15 improper because Ms. Chavez’s in-court statement that she had no recollection of any

16 conversation with Deputy Haycox provided no version of an event to impeach. We

17 review the district court’s decision for abuse of discretion in admitting evidence for

18 the purpose of impeachment. See State v. Macias, 2009-NMSC-028, ¶ 16, 146 N.M.




                                              8
 1 378, 210 P.3d 804. A district court abuses its discretion when its ruling is based on

 2 a misunderstanding of the law. Id.

 3        When a witness’s testimony at trial differs from some other statement she has

 4 made previously, the witness’s prior inconsistent statement may be used to impeach

 5 the witness’s credibility pursuant to Rule 11-613. See Macias, 2009-NMSC-028, ¶ 20

 6 (noting that “it is the fact of the inconsistency that is admissible, not the substantive

 7 truth or falsity of the prior statement”). “To accomplish impeachment by prior

 8 inconsistent statements, the attorney must first elicit in-court testimony about a matter.

 9 If the testimony is inconsistent with [the] witness’s prior statement, the attorney

10 confronts the witness with the prior statement.” Id. However, if the only testimony

11 of the witness that is questioned for inconsistency is the witness’s statement of lack

12 of memory about making a prior statement, the prior statement cannot be used to

13 impeach the witness because there is no direct inconsistency between the testimony

14 of a lack of memory and the prior statement. See id. ¶ 21.

15        In this case, Ms. Chavez testified that she could not remember speaking with

16 Deputy Haycox about the accident. This statement was the only stated basis for the

17 State’s argument in the district court regarding impeachment. The State did not

18 contend that it sought to impeach the witness based on any other factual statements

19 that Ms. Chavez made up to the point in the trial when this impeachment issue was


                                               9
 1 raised. Furthermore, on appeal, the State points to no statement of fact made by Ms.

 2 Chavez that could provide an alternative basis for the district court’s ruling.

 3 Accordingly, we only address the issue of whether Ms. Chavez’s statement that she

 4 did not remember any conversation with Deputy Haycox provided a basis for

 5 impeaching her with extrinsic evidence of the conversations. We hold that, pursuant

 6 to Macias, the use of Ms. Chavez’s prior statements for impeachment purposes was

 7 improper where Ms. Chavez testified at trial that she simply did not remember having

 8 any conversation with Deputy Haycox. See id. ¶¶ 21-22.

 9        The State reads Macias to permit the use of a witness’s prior statements for

10 impeachment purposes when the witness testifies at trial to a lack of memory. Macias

11 does not support this argument. Macias held that when a witness testifies to a lack of

12 memory, the use of prior statements cannot be for impeachment purposes because

13 there was no inconsistent statement to impeach. See id. ¶ 21. Macias states that

14        [t]he use of the taped phone conversation during the [d]istrict
15        [a]ttorney’s direct examination of [a witness] was not for impeachment
16        purposes. The [d]istrict [a]ttorney began this area of questioning by
17        asking [the witness] whether he remembered calling [his cousin] . . . .
18        After [the witness] testified that he did not remember the telephone call
19        and was uncertain what was discussed, the [d]istrict [a]ttorney
20        distributed a transcript to the jury and played the recording of the phone
21        call in its entirety. The [d]istrict [a]ttorney then proceeded to have [him]
22        attempt to interpret the meaning of [her] statements. The [d]istrict
23        [a]ttorney simply was not impeaching [the witness] with a prior
24        inconsistent statement, because [he] had not made a statement in his
25        testimony that could be impeached by the statements made in the call.

                                              10
 1 Id. Although Macias contains a citation to a West Virginia Supreme Court of Appeals

 2 case stating that when a witness testifies to a lack of memory, prior statements may

 3 only be used “sparingly to demonstrate lack of integrity in the witness,” Macias did

 4 not actually approve of any use of the prior statements in that case and did not explain

 5 what “must be used sparingly” might entail. Id. What Macias did say, however, was

 6 that even if use of the statements as impeachment had been proper, “the introduction

 7 of the entire call with its myriad hearsay statements would plainly be an inappropriate

 8 undertaking, unless the hearsay itself were admissible.” Id. In this case, where it

 9 appears that the State cross-examined Ms. Chavez about the entire substance of her

10 prior statements to Deputy Haycox and introduced extrinsic evidence of the

11 conversation through the deputy’s testimony, Macias counsels that the admission of

12 this evidence was improper.

13        Because Macias indicates that the evidence of Ms. Chavez’s prior statements

14 was not admissible for purposes of impeachment, and as there is no contention that

15 it was admissible as substantive evidence, Defendant was not required to request a

16 limiting instruction in order to merit reversal on appeal. See Rule 11-105 NMRA

17 (stating when evidence is admissible for one purpose but not for another, a party may

18 request a limiting instruction). This is not a case in which the evidence could have



                                              11
 1 been properly limited to a particular legitimate evidentiary use. Instead, it was simply

 2 inadmissible.

 3        The State argues that even if the evidence should not have been admitted for

 4 impeachment purposes, the error was harmless. “A reviewing court should only

 5 conclude that a non-constitutional error is harmless when there is no reasonable

 6 probability the error affected the verdict.” State v. Barr, 2009-NMSC-024, ¶ 53, 146

 7 N.M. 301, 210 P.3d 198 (emphasis omitted). To decide whether error in the

 8 admission of evidence was harmless, this Court considers whether there is:

 9 “(1) substantial evidence to support the conviction without reference to the improperly

10 admitted evidence; (2) such a disproportionate volume of permissible evidence that,

11 in comparison, the amount of improper evidence will appear minuscule; and (3) no

12 substantial conflicting evidence to discredit the State’s testimony.” Id. ¶ 56 (footnote

13 omitted).

14        Here, there was substantial evidence to support Defendant’s convictions without

15 reference to the improperly admitted evidence. Substantial evidence is “such relevant

16 evidence as a reasonable mind might accept as adequate to support a conclusion.”

17 State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal

18 quotation marks and citation omitted). Defendant’s only argument regarding the

19 sufficiency of the evidence was that there was insufficient evidence to establish that


                                              12
 1 he was the person driving the Blazer.           However, two eyewitnesses identified

 2 Defendant as the driver. At trial, Mr. Sena identified Defendant as the person

 3 involved in the accident. Mr. Chavez testified that he caught a “glimpse” of

 4 Defendant’s face at the scene, and there was evidence that he selected Defendant as

 5 the driver in a photo array shown to him two weeks after the incident. Although Mr.

 6 Chavez could not identify Defendant in court, his prior identification, in combination

 7 with Mr. Sena’s in-court identification, was substantial evidence from which a

 8 reasonable jury could conclude beyond a reasonable doubt that Defendant was the

 9 driver.

10        Although there was substantial evidence to support the conclusion that

11 Defendant was the driver, we conclude that there was not such a disproportionate

12 volume of permissible evidence on this issue that the impermissible evidence seems

13 minuscule. See Barr, 2009-NMSC-024, ¶ 56. With respect to his identification of

14 Defendant, Mr. Sena stated that even though he came face to face with Defendant

15 while at the scene, with regard to distinguishing marks or tattoos he replied, “I really

16 didn’t look at him. I didn’t pay attention that well.” Defendant was not wearing a

17 shirt when Mr. Sena saw him after the accident, Mr. Sena did not testify to seeing the

18 various tattoos on Defendant’s chest and back. In Mr. Sena’s statement to the police

19 after the accident, he said that Defendant had light brown hair, and when asked at trial


                                              13
 1 what color Defendant’s hair was, Mr. Sena revised his assessment and called

 2 Defendant’s hair “light black.” Mr. Chavez selected Defendant’s photograph from an

 3 array of photos provided by the police two weeks after the accident, but both he and

 4 Mr. Garcia were unable to identify Defendant at trial. The volume of the evidence

 5 identifying Defendant as the driver does not make the prior out-of-court statements

 6 of Defendant’s mother, which relay Defendant’s confession to her that he was the

 7 driver of the vehicle, minuscule in comparison.

 8        Finally, Defendant introduced the testimony of Mr. Corona that it was

 9 Defendant’s father who was driving the Blazer at the time of the accidents. This

10 constitutes substantial evidence that conflicted with the State’s evidence that

11 Defendant was the driver. See id.

12        Upon balancing these factors, this Court can conclude that there is a reasonable

13 probability that the error in the admission of Ms. Chavez’s prior statements affected

14 the verdict. See id. ¶ 53. Accordingly, the error is not harmless and warrants reversal

15 of Defendant’s convictions.

16 Defendant’s Other Claims of Error

17        Defendant asserts that there was insufficient evidence to establish that he was

18 the person driving the vehicle. “In reviewing the sufficiency of the evidence, we must

19 view the evidence in the light most favorable to the guilty verdict, indulging all


                                             14
 1 reasonable inferences and resolving all conflicts in the evidence in favor of the

 2 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

 3 “The relevant question is whether, after viewing the evidence in the light most

 4 favorable to the prosecution, any rational trier of fact could have found the essential

 5 elements of the crime beyond a reasonable doubt.” Id. (alteration omitted) (emphasis

 6 omitted) (internal quotation marks and citation omitted). As we explained in our

 7 harmless error analysis, we conclude that the evidence was sufficient and that reversal

 8 is not warranted on this basis. To the degree that any of the witnesses’ testimony

 9 identifying Defendant was equivocal or subject to questions about its reliability, such

10 conflicts in the evidence were for the jury to resolve.

11        Because we reverse all four of Defendant’s convictions on the basis of the

12 erroneous admission of Ms. Chavez’s hearsay statements for impeachment purposes,

13 we need not address Defendant’s argument for reversal of one of his convictions based

14 on his claim that two of the charges against him should have merged in order to

15 comport with double jeopardy principles.

16 CONCLUSION

17        For the reasons stated in this opinion, we reverse Defendant’s convictions.

18        IT IS SO ORDERED.




                                             15
1                               __________________________________
2                               JONATHAN B. SUTIN, Judge


3 WE CONCUR:



4 _______________________________
5 CELIA FOY CASTILLO, Judge



6 _______________________________
7 TIMOTHY L. GARCIA, Judge




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