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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. 34,326

 5 JOHNNY MILLER,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith Nakamura, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Sergio J. Viscoli, Assistant Public Defender
14 Albuquerque, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant appeals his conviction for DWI (first offense) entered by the

 2 metropolitan court following a bench trial and subsequently affirmed by the district

 3 court following an on-record appeal. [RP 75, 85] Our notice proposed to affirm, and

 4 Defendant filed a memorandum in opposition. We remain unpersuaded by

 5 Defendant’s arguments, and therefore affirm.

 6   {2}   In Issue (I), Defendant continues to argue that the metropolitan court violated

 7 Rule 11-615 NMRA in allowing witness William Thomas (the civilian witness) to

 8 stay in the courtroom while Deputy Morpher (the Deputy) testified. [DS 14; MIO 13]

 9 See generally State v. Shirley, 2007-NMCA-137, ¶ 33, 142 N.M. 765, 170 P.3d 1003

10 (recognizing that trial courts are afforded broad discretion under Rule 11-615 and that

11 “[w]e will not disturb the decision of the trial court absent a clear abuse of this

12 discretion and prejudice to the complaining party” (internal quotation marks and

13 citation omitted)).

14   {3}   For the reasons extensively detailed in our notice, we hold that the metropolitan

15 court did not abuse its discretion in allowing the civilian witness to remain in the

16 courtroom during the Deputy’s testimony. While Defendant maintains that allowing

17 the civilian witness to stay in the courtroom allowed the witness to tailor his testimony

18 to conform to the Deputy’s testimony [MIO 15], we continue to disagree. As

19 emphasized in our notice, whereas the Deputy did not go into any detail in his

                                               2
 1 testimony [RP 76, 80], the civilian witness on the other hand testified in detail about

 2 his own independent observations and interactions with Defendant while driving on

 3 I-40 [RP 77] and while at Defendant’s house [RP 78] that were separate from the

 4 Deputy’s interactions. [RP 80]

 5   {4}   We similarly disagree with Defendant’s assertion that he was prejudiced

 6 because “the civilian witness was able to tailor his testimony regarding the signs of

 7 intoxication to match that of the officers.” [MIO 14] As noted above, the civilian

 8 witness testified in detail as to his independent observations of Defendant and his

 9 exhibited signs of intoxication. See, e.g., Shirley, 2007-NMCA-137, ¶ 34 (concluding

10 no abuse of discretion or prejudice in allowing the officer to remain in the courtroom

11 while the other officer testified because “Officer Johnson testified about what

12 occurred inside Defendant’s house; [whereas] Officer Carr could not testify about

13 such matters because he remained outside the house during the transaction”). And as

14 we pointed out in our notice, the civilian witness specifically testified as to his own

15 basis of knowledge for recognizing signs of intoxication [RP 80]—providing that he

16 came from a family of alcoholics and was familiar with people who were under the

17 influence of alcohol; that he had been a tow truck and taxi driver and had experience

18 with intoxicated people from that line of work; and that he had driven an eighteen-

19 wheeler and had seen multiple alcohol-related accidents. [RP 78] See, e.g., Sanchez


                                              3
 1 v. Wiley, 1997-NMCA-105, ¶¶ 2, 19, 124 N.M. 47, 946 P.2d 650 (holding that a

 2 witness who was a teenager could rely on his knowledge in testifying that the

 3 defendant was “drunk”). We affirm Issue (I).

 4   {5}   In Issue (II), Defendant continues to challenge the sufficiency of the evidence

 5 to support his DWI conviction. [DS 14; MIO 15] See NMSA 1978, § 66-8-102(A)

 6 (2010); see also State v. Dutchover, 1973-NMCA-052, ¶ 5, 85 N.M. 72, 509 P.2d 264

 7 (observing that DWI may be established through evidence that the defendant’s ability

 8 to drive was impaired to the slightest degree); State v. Sutphin, 1988-NMSC-031,

 9 ¶ 21, 107 N.M. 126, 753 P.2d 1314 (setting forth the standard of review).

10   {6}   As detailed in our notice, the civilian witness observed Defendant driving

11 erratically on I-40—swerving [RP 77], veering off the road [RP 76, 77], almost hitting

12 a concrete barrier in the center lane [DS 2]—and causing another vehicle to swerve

13 to avoid a collision and causing the driver of a diesel truck to dive under his truck to

14 avoid being hit. [RP 75-77] Believing that Defendant’s driving presented an

15 emergency [DS 7], the civilian witness called the police [DS 7] and followed

16 Defendant to his home. [DS 8] Once there, the civilian witness testified that Defendant

17 exited his vehicle, at which time he observed that Defendant had slurred speech, could

18 not stand up on his own, and smelled strongly of alcohol. [DS 9] In addition to the

19 testimony of the civilian witness, the Deputy who arrived at Defendant’s home in


                                              4
 1 response to the emergency call also testified. [RP 76] The Deputy related that

 2 Defendant’s mannerisms and speech indicated he was intoxicated [RP 76] and that

 3 Defendant refused to perform the standardized field sobriety tests (SFSTs). [RP 76]

 4   {7}   Based on the foregoing, we hold that substantial evidence supports findings that

 5 Defendant was under the influence of drugs to such a degree that he was incapable of

 6 safely driving a vehicle. See State v. Sparks, 1985-NMCA-004, ¶ 6, 102 N.M. 317,

 7 694 P.2d 1382 (defining substantial evidence as that evidence that a reasonable person

 8 would consider adequate to support a defendant’s conviction). Although the Deputy

 9 himself did not observe Defendant driving [DS 14; MIO 16], the factfinder could

10 properly consider the civilian witness’s testimony relating his observations of

11 Defendant driving, as well as his observations of Defendant’s signs of intoxication.

12 See generally State v. Sims, 2010-NMSC-027, ¶ 3, 148 N.M. 330, 236 P.3d 642

13 (stating that “[h]ad [a] police officer or other witnesses observed [the d]efendant

14 behind the steering wheel of a moving vehicle at or near the time of his apprehension”

15 then the actual physical control instruction would not have been required) (emphasis

16 added); State v. Baldwin, 2001-NMCA-063, ¶ 16, 130 N.M. 705, 30 P.3d 394

17 (pointing out that a factfinder can rely on “human experience” in deciding whether a

18 defendant was under the influence and could “drive an automobile in a prudent

19 manner”). Moreover, the Deputy did observe Defendant at his home after Defendant


                                               5
 1 had been driving, and related that Defendant’s mannerisms and speech indicated he

 2 was clearly intoxicated. [RP 76] See, e.g., State v. Mailman, 2010-NMSC-036, ¶¶ 2-5,

 3 24, 148 N.M. 702, 242 P.3d 269 (observing that there was sufficient circumstantial

 4 evidence to support the DWI conviction based on the defendant’s presence behind the

 5 wheel of a parked vehicle, admissions to having driven and having consumed alcohol,

 6 refusal either to perform field sobriety tests or to provide a breath sample, the presence

 7 of an open can of beer in the vehicle, and a variety of indicia of intoxication including

 8 odor of alcohol, disorientation and confusion, difficulty maintaining balance, and

 9 bloodshot watery eyes). We accordingly hold that the evidence was sufficient to

10 support Defendant’s DWI conviction.

11   {8}   To conclude, for the reasons set forth in our notice and discussed above, we

12 affirm.

13   {9}   IT IS SO ORDERED.


14                                                 ________________________________
15                                                 JAMES J. WECHSLER, Judge




16 WE CONCUR:


                                               6
1 ________________________________
2 CYNTHIA A. FRY, Judge


3 ________________________________
4 LINDA M. VANZI, Judge




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