Certiorari Granted, July 1, 2009, No. 31,739
Certiorari Quashed, June 2, 2010

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-064

Filing Date:    May 11, 2009

Docket No. 27,971

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PATRICK MARQUEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Ricky D. Purcell, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM

for Appellant

                                        OPINION

ROBLES, Judge.

{1}    Patrick Marquez (Defendant) entered a conditional plea of guilty to two counts of
homicide by a vehicle and three counts of great bodily injury by a vehicle, contrary to
NMSA 1978, Section 66-8-101(C) (2004). The plea was conditioned upon the filing of an
appeal on the issue of whether there is such a charge as party to the crime of homicide by a
vehicle and great bodily injury by a vehicle. We affirm.
I.     BACKGROUND

{2}     On August 22, 2005, the State filed a criminal complaint in the magistrate court
against Defendant, alleging that he caused the deaths of two individuals and the great bodily
harm of five others while driving a vehicle under the influence of alcohol, contrary to
Section 66-8-101(C). As developed later, the charges against Defendant were based on
information indicating that, on the night of August 19, 2005, Defendant was a passenger in
Leo Lucero’s vehicle when an accident occurred that left two people dead and five people
injured. The State alleged that, on the night in question, Defendant and Lucero were
drinking together in a bar, and Lucero became so intoxicated that they were refused service.
They then went to another bar together. There, too, they were eventually refused service.
It was then that Defendant bought a twelve-pack of beer, and suggested that Lucero should
drive the two men in Lucero’s vehicle and continue partying. Not long after being on the
road, the vehicle the two men were in rear-ended a van that had thirteen people on board.
The accident resulted in the deaths of two and great bodily injury of five occupants of the
van. After the accident, seven open beer cans were found in Lucero’s vehicle. Lucero had
a breath alcohol content of .19. Defendant made statements that he knew Lucero was
intoxicated at the time of the accident; that he should have taken Lucero’s keys away; and
that he should have avoided the trip.

{3}     A criminal information was filed in the district court on October 5, 2005, charging
Defendant with two counts of homicide by vehicle and five counts of great bodily injury by
vehicle, contrary to Section 66-8-101(C). All seven counts were brought under the parties
to a crime statute in the Motor Vehicle Code. NMSA 1978, § 66-8-120 (1978). Defendant
filed a motion to dismiss in the district court, arguing that he was not the driver, but merely
a passenger; that he did not encourage Lucero; and his mere presence could not support a
charge of being an accessory to the crime because the crime requires the defendant to be
actually operating the vehicle. After a subsequent hearing, the district court denied the
motion. Defendant then entered a plea “conditioned upon the filing of an appeal on the issue
of whether there is such a charge as party to the crime of Homicide by Vehicle and Great
Bodily Injury by Vehicle as raised in [the] motion to dismiss.” During the plea hearing
before the district court, Defendant agreed that the State could prove the factual basis for the
plea agreement.

II.    DISCUSSION

{4}      Defendant argues that the language of Section 66-8-101(C) limits the statute’s
application to only the person driving or in control of the vehicle, and that the narrow
language of Section 66-8-120 cannot be used to charge and convict a passenger in that
vehicle. This is an issue of first impression in New Mexico. Statutory interpretation is a
matter of law, which is reviewed de novo. State v. Duhon, 2005-NMCA-120, ¶ 10, 138
N.M. 466, 122 P.3d 50. “When the language in a statute is clear and unambiguous, we give
effect to that language and refrain from further statutory interpretation.” Id. “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

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effect to the plain meaning of the words of 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.
Statutes that define criminal conduct are strictly construed. Santillanes v. State, 115 N.M.
215, 221, 849 P.2d 358, 364 (1993).

{5}    Section 66-8-101(C) states:

               A person who commits homicide by vehicle or great bodily harm by
       vehicle while under the influence of intoxicating liquor or while under the
       influence of any drug or while violating [NMSA 1978, Section 66-8-113
       (1987)] is guilty of a third[-]degree felony and shall be sentenced pursuant
       to the provisions of [NMSA 1978, Section 31-18-15 (2007)], provided that
       violation of speeding laws as set forth in the Motor Vehicle Code [NMSA
       1978, Section 66-1-1 (1978)] shall not per se be a basis for violation of
       [Section 66-8-113].

{6}    Section 66-8-120 states:

               Every person who commits, attempts to commit, conspires to commit
       or aids or abets in the commission of any act declared herein to be a crime,
       whether individually or in connection with one or more other persons or as
       a principal, agent or accessory, shall be guilty of such offense, and every
       person who falsely, fraudulently, forcibly or willfully induces, causes,
       coerces, requires, permits or directs another to violate any provision of the
       Motor Vehicle Code [Section 66-1-1] or any other law of this state pertaining
       to motor vehicles is likewise guilty of such offense.

{7}       Defendant claims that the State was operating under the portion of Section 66-8-120
that covers persons who aid or abet. However, Defendant posits a chain of logic which, in
his view, establishes that a person cannot be convicted of aiding or abetting the crime
defined in Section 66-8-101(C) as follows: (1) Section 66-8-101(C) applies only to the
driver of a vehicle; (2) the driver can be guilty of the defined crime only if the homicide or
great bodily injury by vehicle occurs while the driver is “under the influence of intoxicating
liquor or . . . any drug;” (3) driving while under the influence is a strict liability crime
requiring no specific mens rea; (4) New Mexico law on accessory liability requires the
person charged as an accessory to have the same mental state as the principal; (5) a person
charged with being an accessory to the crime defined in Section 66-8-101(C) does not share
the principal’s mental state if the principal is not required to have a particular mental state
in order to be guilty of a crime, as is true for the crime of driving while intoxicated, which
is a strict liability offense in New Mexico; and (6) there is no evidence of a common purpose
and no evidence of shared driving.

{8}    While we agree that Section 66-8-101(C) applies to the individual who was in control
of the vehicle, Section 66-8-120 applies to “[e]very person who commits, attempts to
commit, conspires to commit or aids or abets in the commission of any act declared herein
to be a crime, whether individually or in connection with one or more other persons.”

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(Emphasis added.) Section 66-8-120 states specifically that it applies to “any provision of
the Motor Vehicle Code [Section 66-1-1].” There is no exception for homicide or great
bodily harm by vehicle while under the influence.

{9}     We now turn to Defendant’s argument that he cannot be convicted as an accessory
if he cannot factually be deemed to have shared the mental state of the driver. Defendant
contends that the law on accessory liability as defined in the Criminal Code is applicable to
the crimes defined in the Motor Vehicle Code because it is presumed that “the [L]egislature
was aware of existing . . . law and did not intend to enact a law [i.e., Section 66-8-120]
inconsistent with existing law [the Criminal Code].” State v. Chavez, 2008-NMSC-001, ¶
21, 143 N.M. 205, 174 P.3d 988 (internal quotation marks and citation omitted). We have
interpreted the accessory provisions of the Criminal Code as requiring that the accessory
share the criminal intent of the principal and that there be “a community of purpose and
partnership in the unlawful undertaking.” State v. Gaitan, 2001-NMCA-004, ¶ 14, 130 N.M.
103, 18 P.3d 1056 (internal quotation marks and citation omitted).

{10} We have no quarrel with Defendant’s argument that the definition of accessory
liability under the Criminal Code is applicable to the application of accessory liability as
stated in Section 66-8-120. However, we are not persuaded that the nature of the crime of
homicide or great bodily injury by vehicle while under the influence somehow negates the
possibility of a shared criminal intent or community of purpose.

{11} New Mexico has defined “aid” and “abet” to mean “to help, assist, or facilitate the
commission of a crime, or to promote the accomplishment thereof, or to help in advancing
or bringing it about; or to encourage, counsel or incite as to its commission.” State v. Lord,
42 N.M. 638, 649, 84 P.2d 80, 86 (1938) (internal quotation marks omitted). Neither mere
presence nor presence with mental approbation is sufficient to sustain a conviction as an
aider or abettor. State v. Luna, 92 N.M. 680, 683, 594 P.2d 340, 343 (Ct. App. 1979).
Presence must be accompanied by some outward manifestation or expression of approval,
or shared purpose. Id. This expression of partnership in an unlawful enterprise may be
shown by words, actions, signs, conduct, encouragement, or any method sufficient to incite,
encourage, or instigate commission of the offense. Id. The alleged aider and abettor must
share the principal’s criminal intent, but whether the principal’s criminal intent was shared
is a question of fact for the jury, which can be inferred from circumstances. State v. Ochoa,
41 N.M. 589, 603, 72 P.2d 609, 619 (1937).

{12} Both the State and Defendant argue aiding and abetting in the context of driving
while intoxicated. This slightly misses the mark. The offense of driving while intoxicated
does not require an intent to do a further act, or achieve a further consequence. Harrison,
115 N.M. at 78, 846 P.2d at 1087. However, as the committee commentary for the jury
instruction on homicide or great bodily injury by vehicle states, the offense of “[h]omicide
or great bodily injury by vehicle is not a strict liability crime and requires a mens rea
element, ‘a mental state of conscious wrongdoing.’” UJI 14-240 NMRA; see State v.
Jordan, 83 N.M. 571, 572, 494 P.2d 984, 985 (Ct. App. 1972). Our Supreme Court has
previously defined conscious wrongdoing as the “purposeful doing of an act that the law
declares to be a crime.” State v. Omar-Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926

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(1985). “Thus, the mental state required for vehicular homicide (conscious wrongdoing)
requires only that a defendant purposefully engage in an unlawful act.” Id.

{13} The focus of the inquiry into a defendant’s intent is slightly different, depending on
whether the charge is aiding and abetting driving while intoxicated, or homicide and/or great
bodily injury by vehicle. For Defendant to be convicted of aiding and abetting homicide or
great bodily harm by vehicle, it would be necessary for the State to demonstrate that
Defendant encouraged and shared the intent of conscious wrongdoing with Lucero to the
extent that it escalated to a partnership in the enterprise. See State v. Ortega, 77 N.M. 7, 17,
419 P.2d 219, 227 (1966) (holding all that is necessary to be guilty as an aider and abettor
to a crime is to share the criminal intent of the perpetrator and have community of purpose
and partnership in the unlawful undertaking).

{14} We also reject Defendant’s claim of lack of control over the vehicle because it is
irrelevant and overlooks the concept of aiding and abetting. As we noted in State v. Armijo,

       one who participates in a criminal venture is treated by the law as if he or she
       had committed all of the criminal acts of the other participants. An accessory
       (say, the getaway driver) is prosecuted and punished as a principal. . . .
       Consequently, each member of a band of thieves that loots a warehouse is
       treated as having taken all the loot.

120 N.M. 702, 703, 905 P.2d 740, 741 (Ct. App. 1995). Aiding and abetting in this context
does not require physical control over a vehicle.

{15} State v. Hann, 380 N.E.2d 1339, 1341 (Ohio Ct. App. 1977) is persuasive. There,
the court held that a passenger may participate in the operation of a vehicle through
“affirmative action of some sort, as distinguished from mere silence and inaction, [and] this
participation need not be manifested by a direct physical contribution.” Id. at 1340 (internal
quotation marks and citations omitted). In the instant case, Defendant encouraged Lucero
to drive and to continue their party. He purchased beer, which was consumed in the vehicle
and, all the while, he knew that Lucero was intoxicated.

{16} Defendant asserts that there was no evidence that Lucero and he agreed to drink
alcohol to the point of being under the influence and then to drive a vehicle; no evidence of
a partnership to undertake unlawful activity; and no evidence that Defendant aided Lucero
in controlling the vehicle. Additionally, Defendant states that there was no evidence
establishing that Defendant intended Lucero’s acts.

{17} The only facts this Court has are the facts alleged by the State under which Defendant
entered a conditional plea. The State argues that Defendant provided encouragement and
assistance to Lucero. Defendant knew that Lucero was intoxicated as evidenced by the fact
that they were refused service at two bars and by Defendant’s statements after the accident.
It was Defendant who encouraged Lucero to drive his vehicle to continue their party. It was
Defendant who purchased additional alcohol, which was consumed in the vehicle just prior
to the accident. This situation is not a question of Defendant and Lucero agreeing to drink

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alcohol to the point of being under the influence and then driving a vehicle, but a question
of Defendant’s knowledge of Lucero’s intoxicated condition, and Defendant’s approval and
encouragement for Lucero to drive a vehicle. The facts do suggest a partnership between
the two men, such that a jury could convict Defendant of aiding and abetting Lucero.

{18} We therefore conclude that Defendant’s presence in the vehicle, his purchase of
additional alcohol, his statements after the accident, his partnership before the accident, his
knowledge of Lucero’s intoxication, and Lucero’s driving following Defendant’s
encouragement are all factors of the shared intent of conscious wrongdoing.

III.    CONCLUSION

{19}    For the reasons stated above, we affirm Defendant’s conditional plea of guilty.

{20}    IT IS SO ORDERED.

                                               ____________________________________
                                               ROBERT E. ROBLES, Judge

WE CONCUR:

___________________________________
CYNTHIA A. FRY, Chief Judge

___________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Marquez, Docket No. 27,971

CL                     CRIMINAL LAW
CL-AA                  Aiding or Abetting
CL-DG                  Driving While Intoxicated
CL-MH                  Motor Vehicle Violations
CL-VH                  Vehicular Homicide

CA                     CRIMINAL PROCEDURE
CA-PP                  Plea and Plea Bargaining

ST                     STATUTES
ST-IP                  Interpretation
ST-LI                  Legislative Intent




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