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                                                                   New Mexico Compilation
                                                                 Commission, Santa Fe, NM
                                                                '00'04- 14:47:05 2011.09.21
Certiorari Granted, September 9, 2011, No. 33,143

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-091

Filing Date: July 5, 2011

Docket No. 30,461

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

LAUREN OWELICIO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender
Santa Fe, NM
Josephine H. Ford, Assistant Public Defender
Albuquerque, NM

for Appellant

                                       OPINION

WECHSLER, Judge.

{1}     Defendant Lauren Owelicio appeals from a district court judgment affirming her
conviction in metropolitan court for aggravated driving under the influence of intoxicating
liquor or drugs (DWI), contrary to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended

                                            1
2010), after a bench trial. Defendant contends that her own uncorroborated extrajudicial
statement admitting that she was driving was insufficient to support her conviction. We hold
that evidence that someone was driving while intoxicated established the corpus delicti of
the crime and that, regardless, there was evidence corroborating Defendant’s admission that
she was driving. Therefore, we hold that there was sufficient evidence to support
Defendant’s conviction. We affirm.

BACKGROUND

{2}     The pertinent facts are undisputed. Officer Wayne Harvey testified that around
midnight on August 23, 2007, he responded to a reported accident. He arrived at a parking
lot and found a dark-colored vehicle with a man outside, later identified as Aaron Atcitty,
who appeared to be changing a flat tire. The vehicle had two flat front tires, and Atcitty was
changing the one on the driver’s side. Harvey testified that when he arrived, he remembered
seeing a woman, later identified as Defendant, seated in the passenger seat, although the tape
from the video recorder, which was admitted into evidence, showed the woman getting into
the car on the passenger side as Harvey arrived. No one was sitting in the driver’s seat.

{3}      Harvey testified that Atcitty emitted a strong odor of alcohol. He testified that
Atcitty’s speech was very slurred, and he could not initially understand what Atcitty was
telling him. Atcitty denied driving the vehicle and claimed that an unnamed friend had been
driving but ran away. Harvey testified that it was clear that Atcitty denied driving.

{4}    Harvey then spoke with Defendant. He noticed that she had bloodshot, watery eyes,
and that she emitted a strong odor of alcohol. Harvey asked her to step out of the vehicle,
which she did, albeit slowly. She was swaying back and forth and was unsure of her
balance.

{5}     Harvey escorted Defendant to the patrol car and asked her who had been driving.
She initially said nothing, then put her head down, let out a deep sigh, and said “I was
driving the vehicle.” Defendant told Harvey she was coming from Graham Central Station,
a nightclub, where she had consumed three drinks, and she had a blowout while driving.

{6}      Harvey specifically asked Defendant if Atcitty was driving, and she said no. He
accused Defendant of lying because she looked at Atcitty before responding, but Defendant
again told him she was driving. Harvey testified that he gave Defendant several chances to
consider what she was saying, and Defendant admitted to driving each time. He testified that
he initially thought both Defendant and Atcitty were lying and Atcitty was driving until
Defendant admitted to driving several times. Harvey believed Defendant had a “bout of good
conscience” when she admitted to driving, and he testified that he gave her several chances
to change her story to ensure that she was not trying to cover up for Atcitty.

{7}      After determining that Defendant was driving, Harvey administered field sobriety
tests, and Defendant performed poorly. Harvey concluded that she was under the influence

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of alcohol and arrested her for DWI. When Harvey escorted Defendant back to the vehicle,
she went to the passenger side to retrieve her license. Harvey later administered a breath
alcohol test at the police station, and the breath card admitted into evidence at trial showed
Defendant had a breath score of .20/.19.

{8}    The tape from the video recorder was admitted into evidence and shows that as
Defendant and Harvey approached the vehicle, Atcitty again insisted that his friend had been
driving. Harvey told Atcitty to stop lying because Defendant had already admitted she was
driving. When Defendant again claimed she was driving, Atcitty responded “No you
weren’t, dumb-ass[.]”

{9}      Atcitty’s sister, Cynthia Qualo, testified that she, her husband, Atcitty, and Defendant
were at Graham Central Station on the night in question. She testified that Defendant had
“a lot” to drink while they were at Graham Central Station, while she herself had one drink.
She also testified that she saw Atcitty in the driver’s seat when Atcitty and Defendant drove
away from Graham Central Station.

{10} Qualo testified that Atcitty and Defendant were driving behind the car containing
Qualo and her husband, but the cars became separated, and by the time Qualo found Atcitty
and Defendant, they were standing outside the car surrounded by police officers. Qualo
testified that she did not see the accident that caused the blowout and did not know what
happened after the cars became separated.

{11} At trial, Defendant testified that no one was with her and Atcitty in the vehicle, and
she admitted she had previously told Harvey she was driving. However, she recanted her
earlier statements, claiming she only said she was driving because she wanted to protect
Atcitty and his job. She claimed Atcitty’s job was more important than her job, and he might
lose it if he was convicted of DWI. In response to Defendant’s testimony, the metropolitan
court judge told defense counsel that his client was a liar; she either lied to Harvey or was
lying to the court and asked which testimony the court should believe.

{12} No one other than Atcitty and Defendant was present during Harvey’s interactions
with them. Harvey could not remember where the keys were located but admitted Defendant
did not have them and that the keys eventually went with Atcitty. Harvey testified that he
did not know the identity of the registered owner of the car. We note that Defendant has
attached a copy of the car’s registration to her brief in chief, but we decline to consider this
evidence because it was not before the trial court. See State v. Cumpton, 2000-NMCA-033,
¶ 20, 129 N.M. 47, 1 P.3d 429 (“Counsel should not refer to matters not of record in their
briefs.”).

{13} The metropolitan court convicted Defendant of DWI, and the district court affirmed
her conviction. On appeal, Defendant challenges the sufficiency of the evidence to support
her conviction. Specifically, she claims there was insufficient evidence to prove she was
driving the vehicle because the only evidence supporting that finding is her own

                                               3
uncorroborated, extrajudicial admission. We affirm.

CORPUS DELICTI AND/OR TRUSTWORTHINESS RULE

{14} In order to convict Defendant of aggravated DWI, the State had to prove beyond a
reasonable doubt that: (1) Defendant operated a motor vehicle; (2) within three hours of
driving, she had an alcohol concentration of at least sixteen one-hundredths (.16) grams in
two hundred ten liters of breath; and (3) her alcohol concentration resulted from alcohol
consumed before or while she drove the vehicle. See § 66-8-102(D)(1); UJI 14-4506
NMRA. Defendant claims that she was entitled to a directed verdict because, other than her
admission to driving, there was no other evidence that she drove or operated a motor vehicle.

{15} Defendant’s contention that her admission was untrustworthy is a challenge to the
sufficiency of the evidence based on the corpus delicti or trustworthiness rule. Cf. United
States v. Brown, 617 F.3d 857, 860 (6th Cir. 2010) (recognizing that the
trustworthiness/corroboration requirement goes to sufficiency, not admissibility). The
corpus delicti rule provides that commission of a crime cannot be proved solely through the
admission of an extrajudicial confession. See State v. Paris, 76 N.M. 291, 294, 414 P.2d
512, 514 (1966) (recognizing that “unless the corpus delicti of the offense charged has been
otherwise established, a conviction cannot be sustained solely on [the] extrajudicial
confessions or admissions of the accused”). In New Mexico, the traditional corpus delicti
rule has been abandoned, and courts apply a modified version of the trustworthiness rule
adopted in Paris and recently applied and interpreted in State v. Weisser, 2007-NMCA-015,
¶ 17, 141 N.M. 93, 150 P.3d 1043 (acknowledging that New Mexico has adopted the
modified trustworthiness doctrine espoused in State v. Lucas, 152 A.2d 50, 61 (N.J. 1959)).
Defendant claims that pursuant to the modified trustworthiness rule, there was insufficient
proof to corroborate the trustworthiness of her admission that she was driving the vehicle.
The State contends that the modified trustworthiness rule does not apply to Defendant’s
admission to driving because her identity as the driver is not part of the corpus delicti of the
offense of DWI.

STANDARD OF REVIEW

{16} The pertinent facts are undisputed. Therefore, we apply a de novo standard of review
to determine as a matter of law whether the uncontested facts were sufficient to establish the
corpus delicti of aggravated DWI pursuant to the modified trustworthiness doctrine adopted
and applied in New Mexico. See Weisser, 2007-NMCA-015, ¶ 7.

CORPUS DELICTI OF DRIVING WHILE INTOXICATED

{17} The corpus delicti of an offense requires proof that a crime was committed, through
direct or circumstantial evidence showing that (1) a loss or harm occurred, and (2)
someone’s criminal agency caused the loss or harm. See id. ¶ 10. In State v. Sosa, 2000-
NMSC-036, ¶ 20, 129 N.M. 767, 14 P.3d 32, our Supreme Court succinctly stated that “the

                                               4
corpus delicti of an offense is established by proof that the crime was committed, and the
identity of the perpetrator is not material.” That statement was recently reaffirmed by our
Supreme Court in State v. Wilson, 2011-NMSC-001, ¶ 16, 149 N.M. 273, 248 P.3d 315.

{18} Pursuant to our Supreme Court’s holdings in Sosa and Wilson, and in light of
Defendant’s concession that there was independent evidence that the crime of DWI was
committed by someone, her admission to driving is unnecessary for purposes of establishing
the corpus delicti of DWI because the “identity of the perpetrator is not material” to that
determination. Sosa, 2000-NMSC-036, ¶ 20. We cannot and will not revisit our Supreme
Court’s holdings on this issue. See State v. Duarte, 2004-NMCA-117, ¶ 11, 136 N.M. 404,
98 P.3d 1054 (recognizing that this Court’s ability to disregard Supreme Court precedent is
limited to cases in which “the precise issue has not been already decided by our Supreme
Court”).

{19} In response to the State’s contention that Defendant’s admission is not necessary to
establish the corpus delicti, Defendant argues that this case is not about the corpus delicti
rule, but instead is about the due process requirement of corroboration of an untrustworthy
confession. She contends “there is nothing in the case law indicating that the New Mexico
courts intended to limit application of the trustworthiness doctrine . . . to cases where the
corpus delicti is at issue.” She then argues that the modified trustworthiness doctrine should
apply to any use of an extrajudicial confession, not just with regard to establishing the corpus
delicti. We disagree.

{20} The opinion in Sosa was issued long after the modified trustworthiness doctrine was
adopted by our Supreme Court, and the opinion is consistent with that doctrine. See Weisser,
2007-NMCA-015, ¶¶ 23-24 (recognizing that the “Court in Sosa did not cite to Paris in its
discussion of the corpus delicti of a homicide” but observing that the result in Sosa is
consistent with that rule). As previously discussed, the Court in Sosa held that because there
was independent evidence establishing that the crime of homicide occurred, it did not need
to consider the trustworthiness of the defendant’s confession because his identity as the
perpetrator was “nonessential to the [s]tate’s evidence concerning corpus [delicti].” Sosa,
2000-NMSC-036, ¶ 16. By rejecting the defendant’s contention that his confession should
not be used to establish his identity as the perpetrator of the crime, our Supreme Court
clearly suggested that application of the modified trustworthiness doctrine is limited to cases
in which the corpus delicti is at issue. See id. ¶¶ 15-20.

{21} All remaining New Mexico cases applying the modified trustworthiness doctrine
address the issue of whether the corpus delicti was established by addressing whether there
was evidence, apart from the defendant’s confession, that the crime actually occurred. See,
e.g., Doe v. State, 94 N.M. 548, 549, 613 P.2d 418, 419 (1980) (holding that the child’s
admission to shoplifting was insufficient because, outside of that admission, there was no
evidence to establish that the crime of shoplifting had occurred). No case considers whether
the admission or confession may be used to establish the identity of the perpetrator or
whether an admission or confession must be corroborated for that purpose.

                                               5
{22} For example, in Weisser, this Court ultimately determined that the corpus delicti of
the crime of criminal sexual contact of a minor (CSCM) was not established because the
state failed to present any independent evidence tending to establish the trustworthiness of
the defendant’s admission that he committed the crime. See Weisser, 2007-NMCA-015, ¶¶
26-36 (holding that the child’s ambiguous behavioral symptoms were insufficient to
establish the requisite “independent proof of the loss or harm” because they did not establish
that the abuse had occurred or that the child had been harmed, and further holding there was
no evidence corroborating the defendant’s admission that he committed the crime).
Likewise, in Wilson, the Court engaged in a review of the evidence introduced in addition
to the defendant’s confession to show that the crime of homicide had taken place. Wilson,
2011-NMSC-001, ¶¶ 19-28 (concluding that the corpus delicti of homicide was well
supported because the defendant’s confession was sufficiently trustworthy, and there was
independent evidence showing the child’s death was caused by a criminal act). Neither
Wilson nor Weisser considers, much less addresses, whether the trustworthiness doctrine
applies to require corroboration of a defendant’s admission for any purpose other than
establishing the corpus delicti of the crime.

{23} Out-of-state cases cited by Defendant also apply the trustworthiness doctrine in
considering whether there was independent evidence that a crime was committed. However,
in those cases, the defendant’s identity is essential to establishing the corpus delicti because,
due to the nature of the crime charged, in the absence of evidence pertaining to identity,
there would be no crime at all. See, e.g., Brown, 617 F.3d at 862-63 (observing that it is only
when a defendant confesses to a crime that cannot be committed without identifying the
accused, such as felon-in-possession of a firearm, that “the corroborative evidence must
implicate the accused,” but even then, “the independent corroborating evidence need only
show that the crime occurred” (internal quotation marks and citation omitted)).

{24} In Smith v. United States, 348 U.S. 147, 153-54 (1954), the United States Supreme
Court considered whether the corpus delicti or “corroboration rule” applied to all crimes
including the crime of tax evasion. The Court recognized that the crime of tax evasion has
no “tangible injury which can be isolated as a corpus delicti.” Id. at 154. As it could not “be
shown that the crime has been committed without identifying the accused,” the corroborative
evidence had to “implicate the accused in order to show that a crime has been committed.”
Id. Likewise, in Brown, the defendant’s conviction for being a felon-in-possession of a
firearm was based in part on his admission that he had stolen a firearm from the victim.
Brown, 617 F.3d at 859. On appeal, the court held that the defendant’s confessions were
sufficiently corroborated by evidence that the victim had filed a police report claiming that
the gun and other items were stolen. Id. at 863. There did not need to be any independent
evidence establishing that the defendant was the person who actually stole the handgun. Id.

{25} In this case, unlike Wilson, Weisser, Smith, and Brown, the crime of DWI could be,
and was, established without identifying the driver. Therefore, the modified trustworthiness
doctrine is not applicable because the corpus delicti of the crime of DWI was established by

                                               6
independent evidence showing that someone drove while intoxicated. See People v.
Martinez, 67 Cal. Rptr. 3d 670, 673-74 (Ct. App. 2007) (observing that “[t]he corpus delicti
of the offense of driving under the influence consists of proof that the automobile was being
driven by some person who was under the influence of alcohol,” and distinguishing cases
in which the corpus delicti could not be established because there was no evidence
eliminating other sober persons as possible drivers).

SUFFICIENT CORROBORATION OF TRUSTWORTHINESS

{26} Even if we were to agree with Defendant that the modified trustworthiness doctrine
applied and agreed with the metropolitan and district courts that there needed to be some
evidence corroborating Defendant’s admission that she was driving, we would nonetheless
affirm. We would affirm because, contrary to Defendant’s contentions, there was sufficient
corroborating evidence to establish the trustworthiness of her statement that she was driving
and independent proof to confirm that she committed the crime of aggravated DWI. See
Weisser, 2007-NMCA-015, ¶ 17 (holding that under the modified trustworthiness doctrine,
the state must produce “independent corroborative proof tending to establish that when the
defendant confessed he was telling the truth, plus independent proof of the loss or injury”
(emphasis, internal quotation marks, and citation omitted)).

{27} In determining the trustworthiness of Defendant’s extrajudicial statement, we look
not at the circumstances surrounding the statement, but instead at the actual content of the
statement and evidence that corroborates the information contained in the statement. See id.
¶¶ 30-31. Defendant acknowledges that evidence was introduced showing that she and
Atcitty were intoxicated and coming from a bar, Defendant was present in the car, someone
was fixing the tire that she said had a blow out, she and Atcitty were the only people in the
vicinity of the car, and Atcitty, the only other person present, strongly denied driving. There
was also evidence that the vehicle was disabled in a way that indicated impaired driving.
Furthermore, although Harvey testified he saw Defendant on the passenger side when he
arrived, the video tape showed Defendant was just getting into the car on the passenger side
as Harvey arrived. There was also independent evidence that Defendant had a breath alcohol
level of over .16.

{28} This evidence constitutes “evidence establishing the trustworthiness of [Defendant’s]
confession” id. ¶ 17, because it corroborates Defendant’s admission that she was driving to
the extent required. Cf. United States v. Lee, 315 F. Supp. 2d 1038, 1045 (D. Ariz. 2003)
(acknowledging that the evidence used to show that the crime occurred can also be used to
establish the trustworthiness of the defendant’s confession); Wilson, 2011-NMSC-001, ¶ 26
(considering evidence that corroborated the facts contained in the defendant’s confession,
including but not limited to, the testimony of the forensic pathologist who supervised the
autopsy that the child’s cause of death “was consistent with a blockage to his mouth and
nose,” which corroborated the defendant’s admission that he had suffocated the child).

{29}   We note that the metropolitan court found that Defendant’s admission was

                                              7
corroborated in part by the fact that she made the admission several times. We agree with
Defendant and the district court that the metropolitan court erred in so finding. See id. ¶ 30
(stating that multiple extrajudicial statements are not sufficient to establish the
trustworthiness of the statements). However, as recognized by the metropolitan court and
the district court, there was significant other corroborating evidence.

{30} Defendant also suggests that her admission was not trustworthy because she was
intoxicated at the time she made the statement, she was under pressure, and she later
provided a motive for lying. As previously stated, we do not consider such circumstances
that surround the making of Defendant’s extrajudicial statement. See Weisser, 2007-NMCA-
015, ¶¶ 30-31 (refusing to consider the fact that the defendant had Huntington’s disease and
the impact the defendant’s disease had on his truthfulness).

{31} We acknowledge that other evidence indicated Defendant was not the driver.
However, the mere fact that there was testimony or evidence calling the trustworthiness of
Defendant’s admission into question does not negate that there was also corroborating
evidence. Furthermore, Defendant has failed to apprise us of any cases in which the
existence of some evidence calling the truthfulness of the defendant’s admission into
question is enough to ban the use of the defendant’s admission despite the fact that other
evidence corroborated the admission or tended to establish its trustworthiness. Instead, the
existence of contradictory evidence merely raises a credibility issue to be resolved by the
factfinder. See State v. Reddish, 859 A.2d 1173, 1212 (N.J. 2004) (applying the modified
trustworthiness doctrine and holding that once the court determines as a matter of law that
the state’s evidence is sufficient to generate a belief in the trustworthiness of the extrajudicial
statement, any discrepancies or missing details do not undercut the truthfulness of the
defendant’s confession, but instead raise factual issues regarding the reliability of the
confession to be resolved by the factfinder).

SUFFICIENCY OF THE EVIDENCE

{32} Defendant also contends that there was insufficient evidence to establish that she
operated the vehicle as required for a DWI conviction. In analyzing a sufficiency challenge
on appeal, we view the evidence in the light most favorable to the verdict, resolving all
conflicts and indulging all inferences in favor of the verdict. State v. Apodaca, 118 N.M.
762, 765-66, 887 P.2d 756, 759-60 (1994). “We do not weigh the evidence or substitute our
judgment for that of the factfinder.” State v. Akers, 2010-NMCA-103, ¶ 32, 149 N.M. 53,
243 P.3d 757. Moreover, this Court cannot consider the merit of evidence that may have
supported a different result. Id.

{33} Defendant does not dispute that she was intoxicated at the time of the accident or that
someone drove the vehicle in an intoxicated state. As previously discussed, Defendant
admitted that she was driving, that there was evidence placing her at the scene of the
accident, that she and Atcitty were the only persons at the scene, that Atcitty vigorously
denied driving, and that the videotape showed her approaching the passenger side. From this

                                                8
evidence, the metropolitan court could reasonably conclude that Defendant was driving the
vehicle in an intoxicated state. See State v. Mailman, 2010-NMSC-036, ¶¶ 24-28, 148 N.M.
702, 242 P.3d 269 (recognizing that the factfinder may infer that the accused drove while
intoxicated based on circumstantial evidence that includes “the accused’s own admissions,
the location of the vehicle next to the highway, or any other similar evidence that tends to
prove that the accused drove while intoxicated”); cf. State v. Greyeyes, 105 N.M. 549, 552,
734 P.2d 789, 792 (Ct. App. 1987) (upholding a conviction for DWI based on evidence that
the defendant smelled of alcohol, failed field sobriety tests, and admitted to drinking and
driving into a rail).

{34} Although there was other evidence and testimony indicating that Defendant was not
the driver, the factfinder is entitled to weigh these inconsistencies against Defendant’s
admission and the evidence suggesting she was driving. See State v. Salas, 1999-NMCA-
099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the district court acting in
its role as factfinder to resolve any conflict in the testimony of the witnesses and to
determine where the weight and credibility lay). We will not disturb the factfinder’s
determinations on these matters. See Akers, 2010-NMCA-103, ¶ 32 (“We do not weigh the
evidence or substitute our judgment for that of the factfinder.”); cf. State v. Sarracino,
1998-NMSC-022, ¶ 24, 125 N.M. 511, 964 P.2d 72 (observing that “although contrary
evidence is presented which may have supported a different verdict, the appellate court will
not weigh the evidence or foreclose a finding of substantial evidence” (internal quotation
marks and citation omitted)).

CONCLUSION

{35} Based upon the foregoing, we affirm Defendant’s conviction for aggravated
DWI.

{36}   IT IS SO ORDERED.

                                              ____________________________________
                                              JAMES J. WECHSLER, Judge

WE CONCUR:

___________________________________
MICHAEL D. BUSTAMANTE, Judge

___________________________________
CYNTHIA A. FRY, Judge

Topic Index for State v. Owelicio, Docket No. 30,461

AE                     APPEAL AND ERROR

                                              9
AE-SR   Standard of Review
AE-SB   Substantial or Sufficient Evidence

CL      CRIMINAL LAW
CL-DG   Driving While Intoxicated

CA      CRIMINAL PROCEDURE
CA-CF   Confession
CA-CC   Corpus Deliciti Rule




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