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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. 33,082

 5 RANDY KELSEY,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Ross C. Sanchez, District Judge


 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 The Law Offices of Ramsey & Hoon, LLC
14 Twila A. Hoon
15 Socorro, NM

16 for Appellant


17                                 MEMORANDUM OPINION
 1 KENNEDY, Chief Judge.

 2   {1}   Randy Kelsey (Defendant) appeals his convictions for driving while under the

 3 influence of intoxicating liquor, contrary to NMSA 1978, Section 66-8-102 (2010),

 4 and careless driving. We issued a notice of proposed summary disposition proposing

 5 to affirm. Defendant has responded with a timely memorandum in opposition, which

 6 we have duly considered.       We remain unpersuaded that our initial proposed

 7 disposition was incorrect, and we therefore affirm.

 8   {2}   In his memorandum in opposition, Defendant first argues that police lacked

 9 probable cause to arrest him. [MIO 20-22] “In determining whether an officer had

10 probable cause for an arrest, we look at the facts and circumstances within the

11 officer’s knowledge and determine whether they would cause a reasonable, cautious

12 officer to believe that a criminal offense was being committed.” State v. Maez,

13 2009-NMCA-108, ¶ 24, 147 N.M. 91, 217 P.3d 104. Officer Frazier arrested

14 Defendant for DWI based on impairment to the slightest degree. We therefore inquire

15 whether it was objectively reasonable for the officer to believe that Defendant had

16 been driving while he was to the slightest degree “unable to exercise the clear

17 judgment and steady hand necessary to handle a vehicle in a safe manner.” State v.

18 Sanchez, 2001-NMCA-109, ¶ 7, 131 N.M. 355, 36 P.3d 446; see also UJI 14-4501

19 NMRA (defining driving while under the influence of intoxicating liquor).



                                             2
 1   {3}   The record indicates that, at the time Officer Frazier arrested Defendant for

 2 DWI, officers had observed Defendant driving erratically into a parking lot of an

 3 IHOP restaurant before hitting the curb and parking. [RP 68; MIO 2-3] Defendant

 4 then stumbled and almost fell face first out of his vehicle. [RP 68] Defendant had

 5 bloodshot and watery eyes and had an odor of alcoholic beverage emitting from his

 6 facial area. [RP 69] Defendant admitted to drinking between five and six beers. [RP

 7 70; MIO 5] Defendant was belligerent toward the officers, and he performed poorly

 8 on the field sobriety tests (FSTs) that were administered to him. [RP 68-71; MIO 2-3]

 9 We believe that this evidence was sufficient to establish probable cause to arrest

10 Defendant for DWI. See State v. Granillo-Macias, 2008-NMCA-021, ¶ 12, 143 N.M.

11 455, 176 P.3d 1187 (holding that the smell of alcohol emanating from the defendant,

12 his lack of balance at the vehicle, and the manner of his performance of the FSTs

13 constituted probable cause to arrest him for DWI); State v. Jones, 1998-NMCA-076,

14 ¶ 10, 125 N.M. 556, 964 P.2d 117 (concluding that the officer had probable cause to

15 arrest the defendant for DWI when he hit another car from behind, admitted to having

16 drunk two beers, swayed when he was talking to the officer, and failed the FSTs).

17   {4}   Defendant responds that the evidence of his poor performance on the FSTs

18 should be disregarded because he was tasered repeatedly by officers prior to

19 performing the tests. [MIO 20-21] Defendant also points to evidence that he suffers

20 from plantar fasciitis and other medical problems. [MIO 5, 20] We recognize that

                                             3
 1 there was conflicting evidence regarding whether the officers tasered Defendant or

 2 not. [MIO 21] However, any conflicts in the evidence were for the trier of fact to

 3 resolve. See State v. Keyonnie, 1977-NMSC-097, ¶ 2, 91 N.M. 146, 571 P.2d 413

 4 (stating that, in a suppression hearing, the trier of fact determines the weight and

 5 sufficiency of the evidence). We therefore reject Defendant’s argument that the trial

 6 court was required to disregard evidence of his performance on the FSTs.

 7   {5}   Defendant next argues that the trial court erred in not granting a directed verdict

 8 because there was no evidence establishing the nexus between the time of driving and

 9 the determination of impairment. [MIO 22] However, as we stated in our notice,

10 Defendant’s directed verdict claim was waived because he failed to renew his motion

11 for a directed verdict after he presented evidence.              See State v. Baldwin,

12 2001-NMCA-063, ¶ 30, 130 N.M. 705, 30 P.3d 394 (stating that it is well settled that

13 a defendant who presents evidence waives his claim that the evidence at the close of

14 the state’s case was insufficient for submission to the jury).

15   {6}   Additionally, the evidence in this case was sufficient to support Defendant’s

16 conviction under both per se DWI and the impaired to the slightest degree standard.

17 There was evidence that Defendant had a breath test result of 0.08 and that the result

18 was obtained within three hours of his driving. [RP 12] Additionally, the evidence

19 that Defendant drove erratically, was belligerent towards the officers, fell almost face

20 first out of his vehicle, admitted to drinking five or six beers, had an odor of alcoholic

                                                4
 1 beverage on his facial area, and had bloodshot, watery eyes and slurred speech is

 2 sufficient to support his conviction for impaired to the slightest degree DWI. See

 3 State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187 (holding that

 4 there was sufficient evidence of DWI under the impaired-to-the-slightest-degree

 5 standard where the defendant had red, bloodshot, and watery eyes, as well as slurred

 6 speech and a very strong odor of alcohol on his breath, the defendant admitted

 7 drinking, and the officers observed empty beer cans where the defendant had been,

 8 and they testified that the defendant was intoxicated).

 9   {7}   Finally, Defendant argues that he received ineffective assistance of counsel.

10 [MIO 26-28] Specifically, Defendant argues that he received ineffective assistance

11 because his attorney failed to investigate his claim that he was tasered by the officers

12 did a poor job in cross-examining the State’s witnesses about the use of the taser, and

13 failed to make a motion to dismiss for lack of probable cause until reminded to do so

14 by the court. [MIO 24-27] There is a two-fold test for proving ineffective assistance

15 of counsel. The defendant must show that (1) counsel’s performance fell below that

16 of a reasonably competent attorney, and (2) the defendant was prejudiced by the

17 deficient performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d

18 729. The burden of proof is on the defendant to prove both prongs. Id.

19   {8}   We agree with the analysis set out in the district court’s memorandum opinion

20 and hold that Defendant has not established that he was prejudiced by his counsel’s

                                              5
 1 performance. [RP 124-127] See Duncan v. Kerby, 1993-NMSC-011, ¶¶ 10-12, 115

 2 N.M. 344, 851 P.2d 466 (stating that prejudice must be shown before a defendant is

 3 entitled to relief based on ineffective assistance of counsel). With respect to

 4 Defendant’s claims that his counsel failed to adequately represent him regarding the

 5 alleged use of the taser and how this affected his performance on the FSTs, we note

 6 that the magistrate court specifically found that Defendant was guilty under both the

 7 impaired-to-the-slightest-degree standard and per se DWI. [RP 30, 126] We therefore

 8 hold that, even assuming counsel’s performance was deficient with respect to the taser

 9 issue, Defendant suffered no prejudice as the taser was not relevant to his conviction

10 under the per se alternative. We also hold that Defendant suffered no prejudice as a

11 result of his attorney being reminded by the trial court to make a motion to suppress

12 based on the lack of probable cause because a motion to suppress was made and

13 considered by the trial court. See State v. Jacobs, 2000-NMSC-026, ¶ 51, 129 N.M.

14 448, 10 P.3d 127 (stating that failure to prove either prong of the test defeats a claim

15 of ineffective assistance of counsel).

16   {9}    For these reasons, we affirm Defendant’s conviction.

17   {10}   IT IS SO ORDERED.



18                                          ____________________________________
19                                          RODERICK T. KENNEDY, Chief Judge


                                              6
1 WE CONCUR:



2 ___________________________
3 JONATHAN B. SUTIN, Judge



4 ___________________________
5 TIMOTHY L. GARCIA, Judge




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