Certiorari Denied, June 2, 2010, No. 32,371
Certiorari Granted, June 2, 2010, No. 32,374

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-049

Filing Date: April 1, 2010

Docket No. 28,599

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SAUL NEVAREZ,

       Defendant-Appellant.

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

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

for Appellee

Hugh W. Dangler, Chief Public Defender
Santa Fe, NM
Josephine H. Ford, Assistant Public Defender
Albuquerque, NM

for Appellant

                                         OPINION

BUSTAMANTE, Judge.

{1}    After a jury trial in the Bernalillo County Metropolitan Court, Saul Nevarez was
convicted of possession of an open container in a motor vehicle, aggravated DWI (third
offense), concealing identity, careless driving, assault, injuring or tampering with a vehicle,

                                              1
and driving while license suspended. Defendant appealed all convictions to the district
court—except for the driving while license suspended charge—arguing that there was a lack
of substantial evidence. The district court affirmed. On appeal to this Court, Defendant
again argues that the judgment below was not supported by substantial evidence.

{2}      Defendant also raises a new issue on appeal. Emphasizing that the open container
offense described in NMSA 1978, § 66-8-138(B) (2001) provides that “[n]o person shall
knowingly have in his possession on his person” (emphasis added), Defendant asserts the
trial court did not submit a correct instruction to the jury and then failed to provide a curative
instruction to the jury when it expressed confusion as to the possession element of the open
container charge. Defendant argues that the improper instruction and the failure to provide
a curative instruction created juror confusion as to the possession element of the offense and
together constitute fundamental error.

{3}     We agree with the essence of Defendant’s position with respect to the open container
issue. Accordingly, we reverse Defendant’s conviction for possession of an open container
and grant a new trial on this issue. Defendant’s convictions for aggravated DWI, concealing
identity, careless driving, assault, and injuring or tampering with a vehicle are supported by
substantial evidence and we affirm as to these remaining convictions.

BACKGROUND

{4}     The testimonial accounts of the facts relating to Defendant’s arrest diverge
significantly. At trial, APD Officer Ryan Nelson testified that he witnessed Defendant drive
his pickup truck at a high rate of speed and squeal into a parking area. He stated that
Defendant drove his vehicle so near to him and at such a high rate of speed that he had to
move in order to avoid being struck. Upon approaching Defendant’s vehicle, Officer Nelson
observed that Defendant’s passengers all had open containers of beer they were drinking.
He testified that Defendant showed signs of intoxication, that there were open bottles of beer
in the truck, and that Defendant admitted that he drank. Officer Nelson allowed the
passengers to leave the scene, and then proceeded to administer field sobriety tests to
Defendant, including the walk and turn and one-leg stand tests. According to Officer
Nelson’s testimony, Defendant performed each of these tests improperly by stepping off the
imaginary line for the walk and turn test, and failing to count properly or adequately hold
his balance for either test. Defendant was placed under arrest for driving while intoxicated.

{5}     Officer Nelson testified he asked Defendant for his insurance and driver’s license but
that Defendant denied having either. Officer Nelson also stated that when asked, Defendant
said his name was Armando Lopez and gave a birth year of 1974, but did not give a month
or day. While inventorying Defendant’s property, Officer Nelson discovered credit cards
in Defendant’s wallet with Defendant’s true name, Saul Nevarez. Officer Nelson requested
that his assisting officer, Officer Anthony Simballa, search the computer system for
information on that name. At that point Defendant became agitated, laid down in the
backseat of the patrol car, and began kicking the window, eventually kicking out the small
vent window and breaking the window control box. Officers Nelson and Simballa attempted
to remove Defendant from the patrol car but Defendant continued to kick at them, and they
were able to successfully remove him only after a one-second burst of mace to the eyes and

                                                2
nose. Both officers testified that Defendant kicked at them and that they were grazed and
nearly kicked several times.

{6}     At the police substation, Officer Nelson observed Defendant for approximately forty
minutes and informed him that he was required to submit to a blood test, breath test, or both
to determine his alcohol level. Officer Nelson read this requirement from the Implied
Consent Advisory notice posted at the substation. Defendant’s primary language is Spanish,
and although Officer Nelson read it in English, the notice was posted in both English and
Spanish and Officer Nelson testified that Defendant seemed to understand. Defendant was
advised that in addition to the required test he could have an independent test performed by
a qualified person of his choice at no charge to him, and that failure to submit to the test
could result in revocation of his driving privileges. Defendant was twice asked to submit to
testing and twice responded “fuck you pussy, viva la raza[!]” The testimony of Officer
Simballa generally corroborated that of Officer Nelson.

{7}      Defendant’s version of these events is dramatically different. At trial, Defendant
testified that he and some friends were taking a break from helping a friend move when they
were approached by Officer Nelson. Defendant testified that he and his friends were
gathered at the back of his sister’s pickup truck, and that his friends were drinking beer but
that he was not. Defendant testified that he explained to Officer Nelson that he had not had
a drink in eight years. He also testified that he never gave an incorrect name to Officer
Nelson, that Armando Lopez was in fact one of Defendant’s passengers, and that Officer
Nelson must have confused the two men’s names. Defendant also explained that his limited
English proficiency may have contributed to Officer Nelson’s confusion.

{8}     Defendant alleged that at some point, apparently for no reason, Officer Nelson kicked
him, threw him in the police car, took him to an unknown location where he and another
officer continued to beat him, called him a “fucking wetback” and threatened to “take him
back to the mesa to kill him.” He testified that he never lied about his name and that despite
having been beaten in and out of consciousness, he remembered at some point “blowing into
a machine” and giving two breath samples which showed that he had no alcohol in his
system.

DISCUSSION

{9}     As a preliminary matter, we note the wide divergence in the testimony describing the
events surrounding Defendant’s arrest. Notwithstanding, this Court will not re-weigh the
credibility of the witnesses at trial or substitute its determination of the facts for that of the
jury as long as there is sufficient evidence to support the verdict. State v. Mora, 1997-
NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. Our review is limited to those questions
properly before us, including: (1) whether the possession element of Section 66-8-138(B)
was properly described in the jury instructions; (2) whether, because of jury
misunderstanding as to the requisite possession standard, Defendant’s conviction constitutes
fundamental error; and (3) whether substantial evidence supports Defendant’s convictions.

1.      The Meaning of “Possession” Under Section 66-8-138(B)


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{10} Statutory interpretation presents a question of law, which we review de novo. State
v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when
interpreting statutory language is to give effect to the intent of the [L]egislature.” State v.
Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect
to the plain meaning of the words of [the] statute, unless this leads to an absurd or
unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.
“[A] statute defining criminal conduct must be strictly construed.” Santillanes v. State, 115
N.M. 215, 221, 849 P.2d 358, 364 (1993). “Doubts about the construction of criminal
statutes are resolved in favor of . . . lenity.” State v. Keith, 102 N.M. 462, 465, 697 P.2d 145,
148 (Ct. App. 1985).

{11}    Section 66-8-138(B) states:

                No person shall knowingly have in his possession on his person,
        while in a motor vehicle upon any public highway within this state, any
        bottle, can or other receptacle containing any alcoholic beverage that has
        been opened or had its seal broken or the contents of which have been
        partially removed.

(Emphasis added.) The open container jury instruction given at trial provided:

        For you to find [D]efendant guilty of Possession of an Open Container of
        Alcohol, the State must prove to your satisfaction beyond a reasonable doubt
        each of the following elements of the crime:

        1.      [D]efendant drove a motor vehicle on a street;

        2.      [D]efendant had in his immediate possession an open bottle, can,
                glass or other container of alcoholic beverage with alcohol remaining
                in it; and

        3.      This happened in Bernalillo County, State of New Mexico on or
                about the 26th day of May, 2006.

(Emphasis added.) After retiring to deliberate, the jury sent the following question to the
court: “Does immediate possession mean (1) in vehicle, or (2) or [sic] in driver’s
possession?” Without objection from the parties, the court’s response to the jury was only
that the jury should apply the facts to the instruction it had already been given. Defendant
argues that the jury was confused, as evidenced by its inquiry, as to whether a type of
constructive possession was sufficient to find him guilty under the instruction given. He
asserts his conviction cannot stand because the open container statute contains a more strict
possession requirement than merely “in the vehicle,” or any other theory of constructive
possession.

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{12} The State argues that a jury instruction requiring proof that Defendant possessed an
open container “on his person” was not required because Section 66-8-138(B) may be
violated by constructive possession when an open container is merely located “in the
vehicle.” “[C]onstructive possession is a legal fiction used to expand possession and include
those cases where the inference that there has been possession at one time is exceedingly
strong.” State v. Barber, 2004-NMSC-019, ¶ 22, 135 N.M. 621, 92 P.3d 633 (internal
quotation marks and citation omitted). Constructive possession may be shown when a
defendant merely has knowledge of and control over an open container. See State v.
Chandler, 119 N.M. 727, 730, 895 P.2d 249, 252 (Ct. App. 1995).

{13} Absent a requirement for a more strict form of possession, constructive possession
of illegal contraband is generally sufficient to sustain a conviction. See State v. Brietag, 108
N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989) (stating that in drug cases “[p]roof may
be of actual or constructive possession”). For example, in Chandler, at issue was whether
the defendant was in possession of drugs under NMSA 1978, Section 30-31-22(A) (2006),
which makes it unlawful for any “person to intentionally . . . possess with intent to distribute
a controlled substance.” Chandler, 119 N.M. at 730, 895 P.2d at 252. In Chandler, officers
conducted a raid on the defendant’s apartment where she was found “sitting in the midst of
a large cache of drugs and drug paraphernalia,” and her “belongings were found in direct
association with the drugs and drug paraphernalia.” Id. This court affirmed the defendant’s
conviction, concluding that the evidence supported a finding of constructive possession in
satisfaction of Section 30-31-22(A) because the evidence established knowledge of and
control over the drugs. Chandler, 119 N.M. at 730-32, 895 P.2d at 252-54.

{14} Similarly, in State v. Garcia, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72, the New
Mexico Supreme Court affirmed a conviction for possession of a firearm by a felon. The
statutory section at issue there stated only that “[i]t is unlawful for a felon to . . . possess any
firearm . . . in this state.” NMSA 1978, § 30-7-16(A) (2001). The facts establishing
possession were that the gun was located under the defendant’s seat next to an open
container of beer that the defendant admitted was his, and that the defendant was exercising
exclusive control over the gun’s clip by sitting on it. Garcia, 2005-NMSC-017, ¶¶ 15-16.
The Court held that this evidence was sufficient to establish knowledge of and control over
the gun, and affirmed the defendant’s conviction based on constructive possession. Id. ¶¶
22-24, 35.

{15} In contrast, Section 66-8-138(B) contains language describing the possession element
of this offense that is more restrictive than the statutes at issue in Chandler and Garcia. The
statutes in Chandler and Garcia required only “possession.” Section 66-8-138(B) requires
“possession on his person.”

{16} Defendant likens “possession on his person” to “actual possession” which connotes
physical control or occupancy. “Actual possession” means “[p]hysical occupancy or control
over property.” Black’s Law Dictionary 1201 (8th ed. 2004). Defendant reminds us of our
observation in State v. Patterson, 2006-NMCA-037, ¶ 28, 139 N.M. 322, 131 P.3d 1286, that

                                                 5
a defendant’s mere presence in a vehicle where there are open containers does not create
individualized suspicion that a particular defendant has an open container “in his possession
on his person.” Id. (internal quotation marks and citation omitted). Defendant also cites out-
of-state authority requiring physical control of property in order to qualify as actual
possession. State v. Jarrett, 845 A.2d 476, 481 n.2 (Conn. App. Ct. 2004) (noting that an
individual has actual possession of a controlled substance if, for example, it is found “on his
person or in his hands”); State v. Hensley, 661 S.E.2d 18, 21 (N.C. Ct. App. 2008) (holding
that actual possession “requires that a party have physical or personal custody of the item”
(internal quotation marks and citation omitted)).

{17} Most pertinently, Defendant relies on People v. Squadere, 151 Cal. Rptr. 616 (Cal.
App. Dep’t Super. Ct. 1978). In Squadere, the court considered a California open container
statute containing language mirroring that of Section 66-8-138(B). In that case, the
defendant was a passenger in a vehicle with four others and was cited for possession of an
open container after a search of the vehicle revealed five partially empty, cold beer bottles
underneath the passenger and driver seats. Squadere, 151 Cal. Rptr. at 617. The court
concluded that, based on the “on his person” language, the open container statute could not
be violated based on constructive possession, and that the defendant could not be convicted
unless the evidence established that the open container was somehow connected to his
person beyond mere opportunity to access the open container. Id. The court reasoned that
such an interpretation was proper in order to give meaning to all of the language of the
statute, and give effect to the obvious distinction in the possession requirement. Id. at 618.
We agree with the California court’s analysis of the open container statute in Squadere. See
State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 14, 127 N.M. 272, 980
P.2d 55 (stating that “the Court may view cases from other jurisdictions interpreting
practically identical statutory language as persuasive authority”).

{18} The State argues that the language of Section 66-8-138(B) should be read broadly
because it evinces an intent by the Legislature to expand, not narrow, what constitutes
possession for purposes of this Section. The State’s reading is improper because it
disregards any possible legislative purpose in including the language “on his person” as part
of the offense. See In re Adjustments to Franchise Fees, 2000-NMSC-035, ¶ 14, 129 N.M.
787, 14 P.3d 525 (stating that statutes must be interpreted so that no part is rendered
“surplusage or superfluous” (internal quotation marks and citation omitted)); State v. Maes,
2007-NMCA-089, ¶ 20, 142 N.M. 276, 164 P.3d 975 (“[B]ecause the power to define crimes
is committed to the Legislature, and because penal statutes are to be strictly construed, we
must exercise caution in employing the judicially created legal fiction of constructive
possession to criminalize conduct that the Legislature has not clearly proscribed.” (citations
omitted)).

{19} The language of Section 66-8-138(B) is in marked contrast, not only with the drug
offense analyzed in Chandler, but also with the offenses punishable under the other sections
of the open container statute. For example, Section 66-8-138(C) prohibits, with some
exceptions, registered owners from “knowingly keep[ing] or allow[ing] to be kept in a motor

                                              6
vehicle . . . any [open container].” This Section contains no requirement that the open
container be on the registered owner’s person, and prohibits conduct more consistent with
the jury’s inquiry as to whether possession meant merely in the vehicle. Thus, when read
in context, Section 66-8-138(B) prohibits a more narrow form of possession for purposes of
this particular offense. See Quantum Corp. v. State Taxation & Revenue Dep’t, 1998-
NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848 (stating that statutes must be “read in
connection with other statutes concerning the same subject matter”).

{20} Giving effect to the plain meaning of the Legislature’s words, we disagree with the
State that Section 66-8-138(B) is violated by mere constructive possession of an open
container. Defendant could not have been properly convicted based on a finding that an
open container was merely in the vehicle, even if the evidence was otherwise sufficient to
establish knowledge of and control over the open container.

{21} However, this holding should not be construed under Section 68-8-138(B) to mean
that, as a matter of law, a defendant may be convicted only when observed with an open
container in hand or perhaps within an article of clothing. Such a narrow reading would also
be improper and could lead to absurd results inconsistent with legislative intent and stare
decisis on this issue. We recognize, as did the court in Squadere, that “[t]here may be a
variety of circumstances, impossible to foresee, where circumstantial evidence might support
a conviction[,]” 151 Cal. Rptr. at 617 n.2, even where a defendant was not observed in actual
physical possession of the open container. For example, in State v. Garcia, facts that an
open beer bottle was discovered under the defendant’s seat and that the defendant admitted
he had been drinking from the bottle, were sufficient to sustain a conviction for possession
of an open container. 2004-NMCA-066, ¶ 34, 135 N.M. 595, 92 P.3d 41, aff’d in relevant
part, rev’d on other grounds, 2005-NMSC-017, ¶ 34.

{22} Therefore, we hold that Section 66-8-138(B) requires more than facts merely
showing that an open container was located within a defendant’s vehicle, but does not go so
far as requiring that a defendant must be observed in actual physical possession of an open
container. As in Garcia, it is possible that the element of “possession on his person” can be
established by circumstantial evidence. Jury instructions implementing this section must
either follow the express language of the statute, or be crafted to better capture this standard
than does the language “immediate possession.”

2.     The Jury’s Uncured Confusion Resulted in Fundamental Error

{23} Having determined that Section 66-8-138(B) is not violated where the open container
was merely in Defendant’s vehicle or other circumstances supporting only a finding of
constructive possession, we exercise our discretion to examine whether Defendant should
be granted a new trial on this issue. See Rule 12-216(B) NMRA (stating that despite a lack
of preservation, the reviewing court can consider “jurisdictional questions or, in its
discretion, questions involving: (1) general public interest; or (2) fundamental error or
fundamental rights of a party”). Given that this issue is not jurisdictional and was not

                                               7
preserved, we will uphold Defendant’s conviction for possession of an open container unless
the trial court’s errors in first submitting an incorrect instruction and then declining to
provide a curative instruction “implicated a fundamental unfairness within the system that
would undermine judicial integrity if left unchecked.” Barber, 2004-NMSC-019, ¶ 18
(internal quotation marks and citation omitted). “[I]f fundamental error exists, a new trial
will be ordered.” State v. Mascareñas, 2000-NMSC-017, ¶ 7, 129 N.M. 230, 4 P.3d 1221
(internal quotation marks and citation omitted).

{24} “The doctrine of fundamental error applies only under exceptional circumstances and
only to prevent a miscarriage of justice.” Barber, 2004-NMSC-019, ¶ 8. New Mexico
courts recognize fundamental error as a basis to protect a defendant’s substantive rights in
two instances. Id. ¶¶ 15-17. The first is in cases where a defendant has been convicted of
a crime despite indisputable innocence. See id. (explaining that fundamental error was
applied to protect a defendant’s rights after he was convicted of a murder that occurred while
the defendant was undisputedly unconscious). However, “not all questions of fundamental
error turn solely on guilt or innocence” of the defendant, id. ¶ 14, and in some circumstances
our focus is directed “more on process and the underlying integrity of our judicial system.”
Id. ¶ 16. Thus, the second basis for establishing fundamental error occurs when “a mistake
in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt
of the accused.” Id. ¶ 17.

{25} Analysis of fundamental error in this latter context generally requires, as a first step,
a determination as to whether a reasonable juror would have been confused or misdirected
by the jury instruction. Id. ¶ 19. In addressing this question we need look no further than
the fact that the jury expressed its confusion as to the possession standard to the trial court
judge, and that its confusion went uncured. We next “review the entire record, placing the
jury instructions in the context of the individual facts and circumstances of the case, to
determine whether the [d]efendant’s conviction was the result of a plain miscarriage of
justice.” Id. (internal quotation marks and citation omitted).

{26} There is no miscarriage of justice where, despite any misunderstanding by the jury,
the circumstances of the case demonstrate that all the necessary elements of the offense were
satisfied beyond a reasonable doubt. In Barber, the defendant was charged with possession
of methamphetamine with intent to distribute. Id. ¶ 7. The defendant denied possessing the
illegal drugs and argued on appeal that the jury equated possession with mere proximity,
which is insufficient, and that although it was never requested at trial, it was fundamental
error to not instruct the jury on the definition of possession. Id. ¶¶ 11-12. The Court agreed
that failure to provide the jury with an instruction defining possession would have
constituted reversible error had it been preserved, but concluded that it did not rise to
fundamental error. Id. ¶¶ 12, 32. The Court reasoned that, given the jury’s unchallenged
findings that the element of the offense for intent to distribute was met, if the jury
misunderstood the meaning of possession it was likely because the jury equated possession
with ownership rather than mere proximity. Id. ¶ 26. Based on this reasoning, the Court
stated that such a misunderstanding “actually would have placed a greater burden on the

                                              8
prosecution, because ownership would be more difficult to prove than possession alone.”
Id. Thus, the Court held that there was no fundamental error because the missing instruction
did not create confusion in the jury that would “undermine the reliability of the verdict and
the integrity of our judicial system.” Id. ¶ 32.

{27} However, a miscarriage of justice does occur where, based on an uncured
misunderstanding by the jury, there is a distinct possibility that a defendant was convicted
based on an incorrect legal standard. In Mascareñas, for example, the defendant was
convicted of negligent child abuse for inflicting shaken baby syndrome on his infant son
which resulted in the child’s death. 2000-NMSC-017, ¶¶ 2, 6. How severely the child was
shaken was disputed at trial, and in his defense the defendant argued that while his conduct
may have been careless, it did not rise to the level of reckless disregard for the child’s safety
as required for a finding of criminal negligence. Id. ¶ 15. Although there was no objection
at trial, on appeal the defendant argued that the jury instruction for negligent child abuse
failed to adequately define the requisite culpable mental state for criminal negligence by
including language that confused criminal negligence with civil negligence. Id. ¶¶ 7-8.
Under the circumstances of that case, the Court reasoned that there was a distinct possibility
that the defendant was convicted based on the improper standard of carelessness. Id. ¶ 15.
The Court held that it could not “state with confidence that the jury concluded that [the
defendant’s] actions in shaking his baby satisfied the proper criminal negligence standard.”
Id.

{28} Another line of authority recognizes a general rule that the failure to give a jury
instruction containing an essential element of the crime charged constitutes fundamental
error requiring reversal. State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32
(1991) (holding that defendant could not waive claim of error based on a failure to instruct
on an essential element of the crime). We have already determined that the jury instruction
given below did not accurately capture or describe the crime defined by Section 66-8-
138(B). We need not decide whether “on his person” is an element of the crime such that
the failure to include that verbiage in an instruction would be per se reversible error because
we also know that in this case the jury expressed confusion over the type of “possession”
required to commit the crime. That confusion was not dispelled because the trial court did
not offer any curative instruction or explanation in response to the jury’s inquiry.

{29} At trial, both Defendant and Officer Nelson agreed that there were other men in the
truck with Defendant all of whom were drinking. Defendant argued that he was not in
possession of an open container, and there was evidence that Officer Nelson did not recall
exactly how many open containers he observed, or exactly where they were. Even if the jury
believed the contested fact that Defendant admitted to drinking, unlike Garcia, there was no
evidence to link any particular open container in the vehicle specifically to Defendant’s
possession such that it might have been considered on his person.

{30} In light of these circumstances, we cannot conclude with confidence that Defendant’s
guilt was proven beyond a reasonable doubt pursuant to the requisite legal standard for

                                               9
possession under Section 66-8-138(B). There is a distinct possibility that Defendant’s
conviction was based on the mere finding that the open container was in the vehicle, as
opposed to the proper standard requiring possession on Defendant’s person. Accordingly,
we conclude that the jury’s uncured misunderstanding resulted in fundamental error and we
remand to the district court for a retrial of this issue.

3.     Substantial Evidence Supports Defendant’s Convictions for Aggravated DWI,
       Careless Driving, Concealing Identity, Assault, and Injuring or Tampering with
       a Vehicle

{31} Defendant’s remaining arguments are evidentiary, and in reviewing them we apply
a two-step process. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994).
Initially, the evidence is viewed in the light most favorable to the verdict. Id. The appellate
court must then make a legal determination of “whether the evidence viewed in this manner
could justify a finding by any rational trier of fact that each element of the crime charged has
been established beyond a reasonable doubt.” Id. (internal quotation marks and citation
omitted).

{32} “Contrary evidence supporting acquittal does not provide a basis for reversal because
the jury is free to reject Defendant’s version of the facts.” State v. Rojo, 1999-NMSC-001,
¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). “Only the jury may resolve factual
discrepancies arising from conflicting evidence.” Apodaca, 118 N.M. at 766, 887 P.2d at
760 (citation omitted). “The reviewing court does not weigh the evidence or substitute its
judgment for that of the [jury] as long as there is sufficient evidence to support the verdict.”
Mora, 1997-NMSC-060, ¶ 27.

{33} Defendant challenges his DWI conviction based on the issue of impairment. For
Defendant to have been found impaired, the evidence must have justified a finding that
Defendant was “less able to the slightest degree, either mentally or physically, or both, to
exercise the clear judgment and steady hand necessary to handle a vehicle with safety to [the
defendant] and the public.” State v. Sanchez, 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d
446 (internal quotation marks and citation omitted). Evidence that may tend to cast doubt
on the actual level of impairment does not establish that the overall body of evidence was
insufficient to prove impairment beyond a reasonable doubt. See id. ¶ 14.

{34} The evidence at trial was that Defendant drove his vehicle at a high rate of speed and
turned into a parking lot with tire’s squealing, and that Officer Nelson had to move to avoid
being hit by the vehicle. Officer Nelson also testified that Defendant had bloodshot, watery
eyes, and that he detected an odor of alcohol from Defendant. According to Officer Nelson,
Defendant also admitted to having consumed beer and failed to adequately perform field
sobriety tests by losing his balance and failing to follow instructions. In addition to the
inferences that can be drawn from poor balance and concentration, Officer Nelson testified
that the results of the field sobriety tests indicated impairment because they demonstrated


                                              10
that Defendant was unable to focus on more than one thing, which is essential to the task of
driving.

{35} Defendant argues that, while Officer Nelson’s testimony may have shown that
Defendant had been drinking, the totality of the evidence was insufficient to find impairment
beyond a reasonable doubt. Defendant argues that, in addition to evidence indicating
impairment, other evidence at trial suggested that he was not impaired. For example, there
was no testimony that Defendant had trouble parking or exiting his vehicle, he did not hold
on to anything for balance, and he cooperated in performing the field sobriety tests.
Although Defendant raises facts which, taken by themselves, may tend to prove non-
impairment, such contrary evidence does not provide a basis for reversal. See id.

{36} Despite any contrary evidence proffered by Defendant, the evidence was sufficient
to demonstrate that Defendant had consumed alcohol and that as a result his motor skills,
balance, and judgment were impaired. See State v. Neal, 2008-NMCA-008, ¶ 29, 143 N.M.
341, 176 P.3d 330 (filed 2007) (affirming a DWI conviction based on evidence that the
defendant veered over the shoulder line three times, smelled of alcohol, had bloodshot
watery eyes, admitted drinking, and failed to adequately perform field sobriety tests).
Viewed in a light most favorable to the verdict, this evidence justifies the jury’s finding of
impairment to the slightest degree.

{37} With respect to the remaining convictions for careless driving, concealing identity,
assault, and injuring or tampering with a vehicle, Defendant merely reiterates his trial
testimony arguing that, in light of the disputed facts, his guilt could not be established
beyond a reasonable doubt. Besides pointing out that the facts were disputed, Defendant
raises no substantive challenge to the evidence in support of the jury’s findings which
included: that Defendant drove erratically and nearly hit Officer Nelson, that Defendant
gave the false name of Armando Lopez, that Defendant became irate and kicked at officers,
and that Defendant kicked out a window in the patrol car and damaged its door. Defendant
acknowledges that this Court cannot judge the credibility of the witnesses who testified at
trial or substitute its judgment for that of the fact finder where substantial evidence supports
the outcome. Mora, 1997-NMSC-060, ¶ 27. We conclude that the evidence was sufficient
to establish guilt beyond a reasonable doubt for careless driving, concealing identity, assault,
and injuring or tampering with a vehicle.

CONCLUSION

{38} For the foregoing reasons, we affirm Defendant’s convictions for aggravated DWI
(third offense), concealing identity, careless driving, assault, and injuring or tampering with
a vehicle. We reverse Defendant’s conviction for possession of an open container and
remand to the district court for a retrial of this remaining charge.

{39}   IT IS SO ORDERED.


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                                              ____________________________________
                                              MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge


____________________________________
TIMOTHY L. GARCIA, Judge


Topic Index for State v. Nevarez, Docket No. 28,599

AE                          APPEAL AND ERROR
AE-FE                       Fundamental Error
AE-SR                       Standard of Review

CL                          CRIMINAL LAW
CL-DG                       Driving While Intoxicated

CA                          CRIMINAL PROCEDURE
CA-SE                       Substantial or Sufficient Evidence

JI                          JURY INSTRUCTIONS
JI-CJ                       Criminal Jury Instructions
JI-IJ                       Improper Jury Instructions

ST                          STATUTES
ST-IP                       Interpretation




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