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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. 30,625

 5 EVANGELINE VALENCIA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Denise Barela Shepherd, District Judge

 9 Gary K. King, Attorney General
10 Ann M. Harvey, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Jacqueline Cooper, Chief Public Defender
14   Santa Fe, NM
15   Vicki W. Zelle, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1        Following a bench trial, the metropolitan court, as a court of record, convicted

 2 Evangeline Valencia (Defendant) for driving under the influence of intoxicating liquor

 3 (DWI) contrary to NMSA 1978, Section 66-8-102 (2008) (amended 2010). Defendant

 4 appealed to the district court, and the district court affirmed the conviction. On appeal

 5 to this Court, Defendant contends that the metropolitan court and district court erred

 6 in concluding that Defendant had not met her burden of establishing her duress

 7 defense. Defendant contends that once she made a prima facie showing of duress, the

 8 burden should have shifted to the State and the State should have been required to

 9 prove, beyond a reasonable doubt, that Defendant “was not acting under duress when

10 she drove while alcohol-impaired.” We hold that Defendant failed to make a prima

11 facie showing of the four factors required to establish the defense of duress for a strict

12 liability crime. See State v. Rios, 1999-NMCA-069, ¶ 17, 127 N.M. 334, 980 P.2d

13 1068. Accordingly, we affirm.

14 BACKGROUND

15        Defendant testified at trial that she was involved in a one-car accident as she

16 was attempting to flee from physical abuse by her estranged husband. Defendant had

17 been staying at her sister’s home, as she and her husband were experiencing marital

18 difficulties. Defendant testified that her husband called her at work and told her he

19 was coming by, so she left immediately after work to avoid seeing him. According

                                               2
 1 to Defendant, she went with a friend to a spot by the river and spent a few hours

 2 talking. Defendant testified that the next thing she could remember was being inside

 3 her husband’s truck in his driveway and her husband hitting her.

 4        Defendant testified that the attack went on for ten to fifteen minutes before she

 5 was able to escape. Defendant testified that she ran to her car for refuge, but the

 6 attack continued through the vehicle’s open window. Defendant testified that she

 7 rolled up the window, but her husband began trying to break the window in response.

 8 Defendant testified that, in an effort to escape the attack, she placed her car in gear and

 9 started to drive away. According to Defendant, her husband grabbed onto the vehicle,

10 she swerved to try to get him off of the car, and she lost control of the vehicle.

11 Defendant crashed through a wall and hit a gas meter. The car caught on fire and

12 Defendant had to escape through the broken back window.

13        A deputy from the Bernalillo County Sheriff’s Office responded to the scene

14 of the accident. The deputy, noticing that Defendant had bloodshot watery eyes,

15 slurred speech, and an odor of alcohol, and having heard Defendant admit to drinking,

16 conducted a DWI investigation. Following the investigation, the deputy placed

17 Defendant under arrest for DWI.

18 DISCUSSION




                                                3
 1        New Mexico permits defendants to assert the common law defense of duress

 2 in response to a number of charges, including the strict liability crime of DWI. Id. ¶ 1.

 3 A duress defense permits defendants “to show that they ought to be excused from

 4 criminal liability because of the circumstances surrounding their intentional act.” Id.

 5 ¶ 12. In the context of strict liability crimes, our courts have adopted a “narrowed

 6 articulation” of the duress defense, “so as not to ‘vitiat[e] the protectionary purpose

 7 of the strict liability statute.” Id. ¶¶ 16, 17 (alteration in original) (internal quotation

 8 marks and citation omitted). Under this test:

 9        the defendant must produce sufficient evidence that: (1) he was under
10        an unlawful and imminent threat of death or serious bodily injury; (2) he
11        did not recklessly place himself in a situation that would likely compel
12        him to engage in the criminal conduct; (3) he did not have a reasonable
13        legal alternative (in other words, he could not have reasonably avoided
14        the threatened harm or the criminal conduct in which he engaged); and
15        (4) a direct causal relationship existed between the criminal action and
16        the avoidance of the threatened harm.

17 Id. ¶ 17 (quoting State v. Baca, 114 N.M. 668, 674-75, 845 P.2d 762, 768-79 (1992)).

18 In expounding on these requirements, this Court has stated that “the keystone of the

19 analysis is that the defendant must have no alternative—either before or during the

20 event—to avoid violating the law.” Id. ¶ 17 (internal quotation marks and citation

21 omitted).

22        In challenging her conviction for DWI, Defendant contends that the

23 metropolitan court improperly placed the burden to prove duress on Defendant, rather

                                                4
 1 than placing the burden on the State to prove, beyond a reasonable doubt, that

 2 Defendant’s conduct was not excused by duress. Defendant contends that she was not

 3 required to prove each element of the defense of duress for the fact finder to excuse

 4 her illegal conduct of driving while intoxicated. Instead, Defendant contends that she

 5 was only required to make a prima facie showing of duress, after which the burden

 6 should have shifted to the prosecution to prove that she was not acting under duress

 7 when she drove while alcohol-impaired. Defendant argues that the proof necessary

 8 to satisfy a prima facie showing of duress is akin to that needed to support the

 9 issuance of a jury instruction. See State v. Ramirez, 2008-NMCA-165, ¶ 4, 145 N.M.

10 367, 198 P.3d 866 (“When considering a defendant’s requested instructions, we view

11 the evidence in the light most favorable to the giving of the requested instruction[s].”

12 (alteration in original) (internal quotation marks and citation omitted)).

13        Having reviewed the record, we conclude that Defendant did not satisfy her

14 burden of establishing a prima facie showing of duress.              Here, Defendant

15 acknowledges that her testimony at trial provided no information regarding how she

16 came to be at her husband’s house or how the domestic dispute arose. To the extent

17 Defendant argues that “there is no evidence that [she] placed herself in a situation

18 where there was a substantial and foreseeable risk that she would be forced to drive

19 while alcohol-impaired,” Defendant misstates her burden. According to Rios, it is the


                                              5
 1 defendant’s burden to produce sufficient evidence that “[s]he did not . . . place

 2 [herself] in a situation that would likely compel [her] to engage in the criminal

 3 conduct.” 1999-NMCA-069, ¶¶ 17 (internal quotation marks and citation omitted);

 4 id. ¶ 22. This is an affirmative showing that Defendant’s testimony that she cannot

 5 recall does not satisfy. To the extent the deputy testified that Defendant told him she

 6 was at her husband’s house earlier in the evening having drinks when things soured

 7 and her husband became violent, this testimony also fails to establish the

 8 circumstances surrounding the domestic dispute. Moreover, to the extent there was

 9 evidence relating to the commencement of the domestic dispute, it does not

10 demonstrate an absence of recklessness as Defendant asserts. Instead, witness’s

11 testimony that Defendant pulled into the driveway fast, as if she were angry, and that

12 a fight appeared to be underway shortly thereafter, supports a conclusion that

13 Defendant may have come to the house with the intent to instigate an argument, and

14 thus acted recklessly.

15        We understand Defendant to argue that whether or not she was reckless prior

16 to the commission of the crime should not be part of this Court’s inquiry in

17 determining if the defense of duress is available. Specifically, Defendant takes issue

18 with the following statement from Rios: “The keystone of the analysis is that the

19 defendant must have no alternative—either before or during the event—to avoid


                                              6
 1 violating the law.” Id. ¶ 17 (alteration, internal quotation marks, and citation omitted).

 2 Defendant argues that this language was taken from cases where the defendants had

 3 committed the status crime of felon in possession and therefore the crime of

 4 possession temporally preceded the actual event perceived by the defendants. While

 5 Defendant takes issue with the importation of this analysis from a context other than

 6 DWI, this Court’s opinion in Rios was the first time we formally addressed whether

 7 duress can be a defense to DWI. Rios necessarily draws from cases in other contexts

 8 to establish the parameters of a duress defense within the context of DWI. To the

 9 extent Defendant is asking this Court to redefine those parameters, we decline to do

10 so.

11        The metropolitan court held that Defendant had failed to put forth any evidence

12 of the second factor required by Rios, and we agree. Although Defendant argues that

13 we should not treat her memory loss as fatal to her defense, our case law clearly places

14 the burden of establishing the availability of the defense on defendants, and we cannot

15 simply excuse a defendant from satisfying that burden based on general allegations

16 of memory loss. Because we conclude that Defendant failed to present evidence that

17 she did not recklessly place herself in the position of having to drive while impaired,

18 we affirm.

19        IT IS SO ORDERED.


                                               7
1
2                            MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:


4
5 JONATHAN B. SUTIN, Judge


6
7 CYNTHIA A. FRY, Judge




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