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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. 31,187

 5 JOSEPH JONES,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Freddie J. Romero, District Judge

 9 Gary K. King, Attorney General
10 Pranava Upadrashta, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1        A jury convicted Defendant by a general verdict of driving while intoxicated

 2 (DWI), based on alternative theories of actually driving while intoxicated (past

 3 driving) or being in actual physical control of a vehicle while intoxicated (future

 4 driving). With respect to the former alternative, Defendant contends that the State

 5 failed to establish the corpus delicti of the offense. Defendant challenges the

 6 sufficiency of the evidence, generally, to support a conviction under any theory. For

 7 the reasons that follow, we affirm.

 8 BACKGROUND

 9        At approximately 1:00 in the afternoon on November 22, 2009, Deputy Joel

10 Ramirez saw a white vehicle parked by the side of the road on the Roswell relief

11 route. As he passed the vehicle, Deputy Ramirez observed Defendant sitting in the

12 driver’s seat while holding a beer can. He saw another individual, later identified as

13 Mr. Rickley, walk around from the passenger’s side and assist Defendant out of the

14 driver’s seat.

15        Deputy Ramirez turned his patrol unit around and stopped to investigate. By

16 that time, both Defendant and Mr. Rickley were standing behind the vehicle. Deputy

17 Ramirez noticed that the keys were in the ignition, and the remainder of an 18-pack

18 of beer was in the back seat. When Deputy Ramirez asked who had been driving,

19 Defendant gestured to himself and said, “I was driving.” When Deputy Ramirez

                                             2
 1 asked who the vehicle belonged to, both men responded that it was Defendant’s wife’s

 2 car. When asked what they were doing, Defendant said they were talking. Defendant

 3 further explained that they were on their way home from a car dealership.       Deputy

 4 Ramirez noted that Defendant’s speech was slurred, he emitted an odor of alcohol, and

 5 he was unstable on his feet. Deputy Ramirez called for assistance, and Deputy Furbee

 6 arrived at the scene. Deputy Furbee also noted that Defendant looked as though he

 7 had been drinking alcohol, and he appeared to be impaired. Defendant refused to

 8 submit to field sobriety tests, and he was placed under arrest. Defendant ultimately

 9 consented to a blood draw, the results of which indicated a blood alcohol content of

10 .31 gm/100mL.

11        After Deputy Ramirez left the scene with Defendant, when it was clear that

12 Defendant was going to be charged with DWI, Mr. Rickley told Deputy Furbee that

13 “he was all over the road.” Mr. Rickley further indicated that he had said, “Hey, you

14 know, let me drive,” and “he’s pretty drunk.” At trial, Deputy Furbee testified that he

15 understood Mr. Rickley to have been referring to Defendant when he made those

16 statements. Deputy Furbee further explained that there had been no mention of any

17 other person to whom Mr. Rickley could possibly have been referring during the

18 conversation.




                                              3
 1        Mr. Rickley testified that a third person named “Rob” had driven the vehicle,

 2 parked by the side of the road, and left while he and Defendant were sleeping. Mr.

 3 Rickley further denied driving the vehicle himself, and he testified that they had called

 4 Defendant’s wife and were waiting for her to pick them up when Officer Ramirez

 5 arrived. However, Deputy Ramirez and Deputy Furbee testified that Mr. Rickley did

 6 not mention either Rob or the phone call to Defendant’s wife at the time of the

 7 investigation. When the State questioned Mr. Rickley about who he was referring to

 8 when he had indicated to Deputy Furbee that “he was all over the road,” Mr. Rickley

 9 said that he was “taking the fifth” and that he did not recall.

10        At the close of evidence, defense counsel moved for a directed verdict, arguing

11 that the State had not established the corpus delicti of DWI, and further arguing that

12 the evidence was insufficient to establish that Defendant was in actual physical control

13 of the vehicle with the intent to drive. The district court denied the motion. The

14 State’s alternative theories went to the jury, which returned a guilty verdict. This

15 appeal followed.

16 DISCUSSION

17 A.     DWI (Past Driving)

18        On appeal, Defendant renews his challenges to the sufficiency of the evidence,

19 both specifically to establish the corpus delicti of DWI (past driving) and more


                                               4
 1 generally to support either of the State’s alternative theories (DWI per se, and driving

 2 while impaired to the slightest degree). See generally State v. Owelicio, 2011-NMCA-

 3 091, ¶ 15, 150 N.M. 528, 263 P.3d 305 (observing that a challenge based on the

 4 corpus delicti rule is a challenge to the sufficiency of the evidence), cert. granted,

 5 2011-NMCERT-009, 269 P.3d 903; State v. Pickett, 2009-NMCA-077, ¶ 6, 146 N.M.

 6 655, 213 P.3d 805 (distinguishing between DWI per se and driving while impaired to

 7 the slightest degree).

 8 1.     Standard of Review

 9        Insofar as the underlying facts were disputed, we must defer to the

10 determinations of the finder of fact to the extent that substantial evidence exists. See

11 State v. Weisser, 2007-NMCA-015, ¶ 7, 141 N.M. 93, 150 P.3d 1043 (observing, with

12 respect to a challenge to the sufficiency of the evidence to establish the corpus delicti

13 of an offense, that the reviewing court must defer to the findings rendered below to

14 the extent that substantial evidence exists); see generally State v. Treadway,

15 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746 (“The sufficiency of the evidence

16 is reviewed pursuant to a substantial evidence standard.”). When reviewing a

17 challenge to the sufficiency of the evidence, we review the evidence introduced at trial

18 to determine “whether substantial evidence of either a direct or circumstantial nature

19 exists to support a verdict of guilt beyond a reasonable doubt with respect to every


                                               5
 1 element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d

 2 1314, 1319 (1988). We view the evidence in the light most favorable to the verdict,

 3 resolving all conflicts and indulging all inferences in favor of the verdict. State v.

 4 Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994).

 5 2.     Corpus Delicti

 6        “The corpus delicti rule provides that commission of a crime cannot be proved

 7 solely through the admission of an extrajudicial confession.” Owelicio, 2011-NMCA-

 8 091, ¶ 15. Under the modified form of the doctrine that has been adopted in New

 9 Mexico, “an extrajudicial statement may be used to establish the corpus delicti where

10 the statement is shown to be trustworthy and where there is some independent

11 evidence to confirm the existence of the alleged loss or injury.” Weisser, 2007-

12 NMCA-015, ¶ 18. “In determining the trustworthiness of [a d]efendant’s extrajudicial

13 statement, we look not at the circumstances surrounding the statement, but instead at

14 the actual content of the statement and evidence that corroborates the information

15 contained in the statement.” Owelicio, 2011-NMCA-091, ¶ 27. The requisite

16 independent evidence of past driving while intoxicated may be circumstantial. See,

17 e.g., State v. Mailman, 2010-NMSC-036, ¶¶ 23, 28, 148 N.M. 702, 242 P.3d 269

18 (observing that direct evidence is not required to support a conviction for past DWI;




                                             6
 1 rather, circumstantial evidence may be relied upon to establish that the accused

 2 actually drove while intoxicated).

 3        In this case, in addition to Defendant’s admission, sufficient corroborating,

 4 circumstantial evidence was presented to support the verdict. Defendant was observed

 5 holding a can of beer while sitting behind the wheel of a vehicle parked on the side

 6 of the road. He stated that he and Mr. Rickley were returning home after visiting a

 7 business establishment. The keys were in the ignition of the vehicle, which belonged

 8 to Defendant’s wife. Defendant and Mr. Rickley were the only people in the vicinity,

 9 and Mr. Rickley denied driving. Additionally, the finder of fact could reasonably have

10 inferred from Mr. Rickley’s statement, “he was all over the road,” that Mr. Rickley

11 was speaking as a witness to Defendant’s act of driving while impaired. Finally,

12 Defendant had a very high blood alcohol content. We conclude that this constituted

13 sufficient corroborating evidence to establish the trustworthiness of Defendant’s

14 statement that he was driving, as well as independent proof to confirm that Defendant

15 committed the crime of driving while intoxicated. Considerably less has been deemed

16 sufficient in the past. See, e.g., Owelicio, 2011-NMCA-091, ¶¶ 27-28 (holding that

17 the modified trustworthiness doctrine was satisfied by evidence that the defendant and

18 a third party were the only people in the vicinity of a vehicle, both were intoxicated,




                                              7
 1 the third party denied driving, and the vehicle was disabled in a way that could have

 2 indicated impaired driving).

 3        We acknowledge that other evidence was presented, chiefly through the

 4 testimony of Mr. Rickley, suggesting that a third party had driven the vehicle rather

 5 than Defendant.     However, this does not negate the fact that other evidence

 6 corroborated Defendant’s admission and tended to establish its trustworthiness. Id.

 7 ¶ 31. “Instead, the existence of contradictory evidence merely raises a credibility

 8 issue to be resolved by the fact[]finder.” Id. We therefore reject Defendant’s

 9 challenge based on the corpus delicti rule.

10 3.     Sufficiency of the Evidence

11        We also understand Defendant to challenge the sufficiency of the evidence,

12 generally, to support a conviction for DWI (past driving) in this case.

13        As previously mentioned, with respect to DWI (past driving), two alternative

14 theories went to the jury: DWI per se, and driving while impaired to the slightest

15 degree. See generally NMSA 1978, § 66-8-102 (A), (C) (2008) (amended 2010)

16 (defining the offenses of DWI per se and driving while impaired to the slightest

17 degree). Because the jury returned a general verdict, the conviction will be upheld if

18 the evidence is sufficient to support either theory. See State v. Olguin, 120 N.M. 740,

19 741, 906 P.2d 731, 732 (1995) (holding that due process does not require a general


                                              8
 1 verdict of guilt to be set aside if one of the two alternative bases for conviction is

 2 supported by sufficient evidence).

 3        As an initial matter, we note that contrary to Defendant’s suggestion, direct

 4 evidence is not required to support a conviction for DWI based on past driving while

 5 impaired to the slightest degree; rather, circumstantial evidence may properly be relied

 6 upon in this context. Mailman, 2010-NMSC-036, ¶¶ 23, 28.

 7        As previously described, the State’s circumstantial evidence included

 8 Defendant’s admission to driving, his presence behind the wheel of a vehicle

 9 belonging to his wife with the keys in the ignition and with a can of beer in his hand,

10 the location of the vehicle next to a highway, the fact that Defendant and a third party

11 who denied driving were the only persons in the vicinity, the third party’s statement

12 that “he was all over the road,” Defendant’s appearance and physical condition, and

13 Defendant’s extremely high blood alcohol content. This constitutes a stronger

14 showing than has been deemed sufficient in other recent cases. See id. ¶¶ 2-5, 24

15 (observing that there was sufficient circumstantial evidence to support a conviction

16 for past driving while impaired to the slightest degree, based on the defendant’s

17 presence behind the wheel of a parked vehicle, admissions to having driven and

18 having consumed alcohol, refusal either to perform field sobriety tests or to provide

19 a breath sample, the presence of an open can of beer in the vehicle, and a variety of


                                              9
 1 indicia of intoxication including odor of alcohol, disorientation and confusion,

 2 difficulty maintaining balance, and bloodshot watery eyes); cf. Owelicio, 2011-

 3 NMCA-091, ¶ 33 (concluding that sufficient evidence was presented to support a

 4 conviction for DWI based on the defendant’s admission that she was driving, the fact

 5 that the defendant and a third party who denied driving were the only persons at the

 6 scene, and a videotape showing the defendant approaching the passenger side of the

 7 vehicle). We specifically note that Mr. Rickley’s statement, “he was all over the

 8 road,” distinguishes this case from other recent authority involving inadequate

 9 circumstantial evidence. Contra State v. Cotton, 2011-NMCA-096, ¶¶ 14-15, 150

10 N.M. 583, 263 P.3d 925 (holding that there was insufficient evidence to support a

11 conviction, where there was nothing from which the jury could infer that the

12 defendant had driven after he had consumed alcohol and after his ability to drive had

13 become impaired), cert. denied, 2011-NMCERT-008, 268 P.3d 514. We therefore

14 conclude that the State presented ample evidentiary support for a conviction for DWI,

15 based on past driving while impaired to the slightest degree.

16        We recognize that Defendant takes issue with the sufficiency of the evidence

17 to support the State’s alternative theory. Insofar as sufficient evidence as presented

18 on the theory of past driving while impaired to the slightest degree, we need not




                                             10
 1 consider the sufficiency of the evidence to support a conviction for DWI per se.

 2 Olguin, 120 N.M. at 741, 906 P.2d at 732.

 3 B.     DWI (Future Driving - Actual Physical Control)

 4        Defendant devotes a significant portion of his argument on appeal to the

 5 sufficiency of the evidence to support a conviction for DWI (future driving),

 6 contending that the State failed to establish that he was in actual physical control of

 7 the vehicle. However, we note that this is not a case in which any alternative theory

 8 was legally, as opposed to factually, inadequate. Contra Mailman, 2010-NMSC-036,

 9 ¶¶ 1, 10-12, 29 (reversing and remanding for retrial where the jury was not properly

10 instructed on all of the essential elements of one of the alternative theories); see

11 generally Olguin, 120 N.M. at 741, 906 P.2d at 732 (explaining that “a conviction

12 under a general verdict must be reversed if one of the alternative bases of conviction

13 is legally inadequate”). Therefore, in light of our determination that the alternative

14 theory of DWI (past driving while impaired to the slightest degree) was adequately

15 supported by the evidence, it is unnecessary to consider the sufficiency of the

16 evidence to support a conviction for DWI (future driving). See Mailman, 2010-

17 NMSC-036, ¶ 28 (“Actual physical control is not necessary to prove DWI unless there

18 are no witnesses to the vehicle’s motion and insufficient circumstantial evidence to

19 infer that the accused actually drove while intoxicated.”); Olguin, 120 N.M. at 741,


                                             11
1 906 P.2d at 732 (holding that a general verdict of guilt need not be set aside if one of

2 the alternative bases for conviction is supported by sufficient evidence).

3 CONCLUSION

4        For the foregoing reasons, we affirm.

5        IT IS SO ORDERED.



6
7                                         MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9
10 RODERICK T. KENNEDY, Judge


11
12 MICHAEL E. VIGIL, Judge




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