State v. Garrison ( 2013 )

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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. 31,543
5 CONNIE GARRISON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 Jerry H. Ritter, Jr., District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 Francine A. Baca-Chavez, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Connie Garrison
15 Ruidoso, NM
16 Pro Se Appellant
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 Defendant, pro se, appeals from her conviction for speeding (16-20 miles over
2 the posted speed limit). Defendant contends that the State did not sufficiently
3 establish either the legal speed limit for the area of highway on which she was
4 traveling or the speed with which she was traveling on it. Defendant raises these
5 arguments as challenges to the sufficiency of the evidence. We are not persuaded that
6 Defendant has demonstrated error. We affirm.
7 DISCUSSION
8 Our review of a sufficiency of the evidence question involves a two-step
9 process. See State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994).
10 Initially, we view the evidence in the light most favorable to the verdict, indulging all
11 reasonable inferences and resolving all conflicts in the evidence in favor of the
12 verdict, and then we must “make a legal determination of whether the evidence
13 viewed in this manner could justify a finding by any rational trier of fact that each
14 element of the crime charged has been established beyond a reasonable doubt.” Id.
15 (internal quotation marks and citation omitted). “The question is whether the [district]
16 court’s decision is supported by substantial evidence, not whether the court could have
17 reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121
18 N.M. 562, 915 P.2d 318. “The reviewing court does not weigh the evidence or
19 substitute its judgment for that of the fact[-]finder as long as there is sufficient
2
1 evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M.
2 346, 950 P.2d 789, abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020,
3 148 N.M. 381, 237 P.3d 683.
4 A. The Speed Limit
5 The speeding regulation, under which Defendant was convicted, prohibits a
6 person from driving on a highway over “the posted speed limit in construction zones
7 . . . or other safety zones . . . as designated by the [state] highway and transportation
8 department, provided that the posted speed limit shall be determined by an
9 engineering study performed by the state highway and transportation department.”
10 NMSA 1978, § 66-7-301(A)(4) (2002). Defendant contends that it was the State’s
11 burden to establish the speed limit in accordance with this regulation, which, she
12 argues, required the State to produce the traffic engineering survey that assessed the
13 appropriate speed limit for the area of highway on which she was issued a traffic
14 citation. Defendant refers us to no controlling case law to support this contention and
15 we are not aware of any. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
16 1329, 1330 (1984) (stating that an appellate court will not consider an issue if no
17 authority is cited in support of that issue and we therefore assume no such authority
18 exists). Instead, Defendant refers us to cases for the general proposition that the State
19 carries the burden to prove a fact through evidence. Defendant’s argument does not
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1 persuade us that the speeding regulation places a burden on the State to produce a
2 copy of the engineering study from the State Highway and Transportation Department
3 in proving a prima facie case that a driver was speeding. See State v. Trossman,
4 2009-NMSC-034, ¶ 17, 146 N.M. 462, 212 P.3d 350 (“In general legal parlance,
5 ‘prima facie evidence’ is ‘[e]vidence that will establish a fact or sustain a judgment
6 unless contradictory evidence is produced.’ ” (quoting Black’s Law Dictionary 598
7 (8th ed. 2004))). With this in mind, we examine the sufficiency of the State’s
8 evidence.
9 In the present case, the officer testified that Defendant was driving eighty-six
10 miles per hour in an area with a posted speed limit of sixty-five miles per hour that
11 was close to a fifty-five mile per hour zone. The officer also testified that he had been
12 a New Mexico State police officer for twelve years and had been assigned to Otero
13 County for eleven and a half years, from which the district court could reasonably
14 infer that he was familiar with the posted traffic limits in Otero County. See Apodaca,
15 118 N.M. at 766, 887 P.2d at 760 (indicating that on appeal the appellate courts view
16 the evidence in the light most favorable to the verdict, indulge all permissible
17 inferences, and resolve all conflicts in the evidence in favor of the verdict).
18 Defendant did not challenge the officer’s testimony with any contrary evidence
19 about the speed limit. Rather, Defendant argued in a pretrial motion to dismiss, nearly
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1 four and a half months before trial, that the state police failed to supply her with a
2 copy of the engineering study, which she considered exculpatory evidence subject to
3 disclosure and subpoena. The district court informed Defendant that the officer is not
4 the custodian of the engineering surveys, that the state police is a separate and distinct
5 entity from the state highway department, and that she would need to subpoena the
6 engineering survey from the state highway department, given that the officer has the
7 burden to prove and provide only evidence that is in his possession, not to do
8 Defendant’s investigation for her. The trial record shows that Defendant never
9 rebutted the State’s evidence by producing a copy of an engineering study showing
10 that the speed limit was higher than the officer indicated in the charging document or
11 his trial testimony. Under these circumstances, we fail to see why the officer’s
12 testimony about the posted speed limit was insufficient. See State v. Salgado, 1999-
13 NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (stating that substantial evidence is
14 “such relevant evidence as a reasonable mind might accept as adequate to support a
15 conclusion” (internal quotation marks and citation omitted)); State v. Salas, 1999-
16 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-
17 finder to assess the weight and credibility of the testimony).
18 To the extent that Defendant may be arguing that the State failed to show that
19 the speed limit was legal under NMSA 1978, Section 66-7-303 (1996), or Section 66-
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1 7-301, Defendant did not clearly and sufficiently argue this matter below. In her brief
2 in chief, Defendant asserts that the State admitted there was no traffic engineering
3 survey and that the speed limit was seventy-five miles per hour on the highway.
4 Defendant does not refer to the record to support her assertion and nothing in the
5 record supports any such alleged admission from the State. See Rule 12-213(A)(4)
6 NMRA (stating that the brief in chief shall contain “the contentions of the appellant
7 and a statement explaining how the issue was preserved in the court below, with
8 citations to authorities, record proper, transcript of proceedings[,] or exhibits relied
9 on”); State v. Jensen, 1998-NMCA-034, ¶ 18, 124 N.M. 726, 955 P.2d 195 (“When
10 a case is assigned to a general calendar, the factual basis for the issues must be
11 contained in the record of proceedings made below.”). Also, nothing in the record
12 suggests that Defendant presented any legal or factual argument to support her
13 contention that the speed limit was not established in accordance with statute. See
14 State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that,
15 to preserve an issue for appeal, the defendant must make an objection that specifically
16 apprises the district court of the nature of the claimed error and invokes an intelligent
17 ruling thereon). Therefore, we have no record concerning the substance of her issue
18 to review on appeal. Also, as we indicated earlier, Defendant’s sparse and unclear
19 argument does not persuade us that the State must produce a highway engineering
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1 study as part of its prima facie case against a driver for speeding. At best, Defendant’s
2 challenge to whether the speed limit was properly established according to statute
3 might be an affirmative defense to speeding; however, in order to properly raise such
4 a defense, Defendant was required to produce evidence and argument to support it.
5 See State v. Stanley, 2001-NMSC-037, ¶ 30, 131 N.M. 368, 37 P.3d 85 (explaining
6 that where “a defendant did not bear the burden of proof that the decedent caused a
7 fatal crash, the defense’s accident theory was not an affirmative defense”); State v.
8 Munoz, 1998-NMSC-041, ¶ 15, 126 N.M. 371, 970 P.2d 143 (recognizing that a
9 criminal defendant bears the burden of proof of an affirmative defense); cf. City of
10 Albuquerque v. Chavez, 1997-NMCA-034, ¶¶ 9-10, 123 N.M. 258, 939 P.2d 106611 (indicating that generally the party who claims an affirmative defense, including a
12 criminal defendant, bears the burden of proof and production), rev’d on other
13 grounds, 1998-NMSC-033, 125 N.M. 809, 965 P.2d 928. Because Defendant failed
14 to do so, she has not preserved the matter for our review. See State v. Gomez, 1997-
15 NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1 (stating that our preservation rules
16 require that “parties . . . assert the legal principle upon which their claims are based
17 and . . . develop the facts in the trial court”). For the foregoing reasons, we do not
18 address this argument further. See In Re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M.
19 641, 996 P.2d 431 (stating that, on appeal, the reviewing court will not consider issues
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1 not raised in the lower court unless the issues involve matters of fundamental error or
2 fundamental rights).
3 B. The Measure of Defendant’s Speed
4 Defendant also challenges the sufficiency of the evidence on the basis that the
5 officer did not accurately or reliably measure the speed with which Defendant was
6 driving. Defendant preserved this issue by cross-examining the officer at trial on his
7 use and knowledge of the radar equipment. While we acknowledge that an attack on
8 the reliability and accuracy of an officer’s radar might be raised in a challenge to the
9 admission of evidence, Defendant did not raise such a challenge in this case. Cf. State
10 v. Martinez, 2007-NMSC-025, ¶¶ 9-12, 141 N.M. 713, 160 P.3d 894 (observing that
11 admission of a breath card into evidence requires an evidentiary foundation indicating
12 that the accuracy-ensuring regulations governing the breath alcohol tests were
13 satisfied). Because Defendant argues her challenge to the officer’s use and knowledge
14 of the radar equipment as an attack on the weight and credibility of the officer’s
15 testimony, we do the same here.
16 In her brief in chief, Defendant repeatedly complains that the officer did not
17 read the owners’s manual for the radar and that he could not obtain an accurate
18 reading because he strikes his tuning forks on metal surfaces of his patrol unit to
19 calibrate the radar equipment, which the radar manual warns may damage the tuning
8
1 forks and create spurious overtones, which could result in false readings. We observe,
2 however, that the trial testimony also demonstrated that the manual explained that the
3 spurious overtones may cause the speed readings to be only slightly higher than
4 specified and that such readings are only momentary, and the proper readings would
5 be displayed as the false overtones dissipate.
6 In addition, the officer testified extensively on his knowledge of his patrolling
7 equipment and his training regarding, and extensive experience with, the radar he used
8 to detect Defendant’s speed. Specifically, the officer testified that he received
9 specialized training on the use of the radar equipment prior to becoming a patrol
10 officer, including its installation in the officer’s patrol unit, the use of the radar, the
11 calibration of the antennas that accompany the radar; and he had hands-on training in
12 actual speed enforcement and speed recognition without the radar. On cross-
13 examination, the officer explained that the training he received from the police
14 academy regarding the radar equipment was more detailed than the radar’s manual and
15 more specific to his duties and responsibilities as a police officer patrolling traffic.
16 The officer also testified that he was assigned the same patrol unit and was in
17 exclusive possession of it for seven years and that he was assigned the same traffic
18 radar equipment, called the Golden Eagle, for nine years, even longer than the vehicle.
19 The officer explained that every day, he begins service by running everything in his
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1 unit and detailed how he ensures that all of his traffic control equipment is working
2 properly in both stationary mode and moving mode, and he enters it into his daily
3 logs.
4 The State entered into evidence the officer’s daily log for the day he pulled over
5 Defendant for speeding, as the officer testified that he checked his equipment and
6 found that the radar was working properly on that day and the next morning. The
7 officer testified that at the time he pulled over Defendant, he was traveling sixty-five
8 miles per hour, the speed limit, and had set his cruise control for that speed with the
9 radar on, and observed Defendant’s vehicle traveling from the opposite direction. The
10 officer conducted speed tests on Defendant’s vehicle, checking both the front and rear
11 radar antennas, and stated that the radar showed Defendant’s speed coming at the
12 officer to be eighty-six miles per hour and showed that Defendant passed him at
13 approximately the same speed. The officer explained that there were no other vehicles
14 in the area at that time to interfere with the radar. The officer noted on the citation
15 that Defendant asked for a warning when he pulled her over, which the officer
16 considered significant because she would not have done so if she did not know she
17 was speeding.
18 Defendant further questioned the officer about possible interferences with the
19 radar’s reading, such as the patrol unit’s fan, radio frequency, and the operation of the
10
1 radar’s air filter, as well as the patrol unit’s battery and tires. The officer explained
2 how none of the factors with which Defendant was concerned affected the radar’s
3 accuracy. Of particular concern to Defendant at trial and on appeal is whether the fan
4 created a ten mile per hour increase in the reading of Defendant’s speed, which the
5 officer explained was not a concern in this case because the fan is only an issue when
6 the patrol unit is stationary and the officer’s patrol unit was traveling when the radar
7 measured Defendant’s speed.
8 At the close of evidence, Defendant moved to dismiss on the grounds that the
9 State had not met its burden of proof. The district court disagreed and ruled that the
10 radar reading that the officer testified to was admissible and accurate beyond a
11 reasonable doubt at least to plus or minus one mile per hour. Accordingly, the district
12 court found that the State presented sufficient evidence that Defendant was speeding
13 eighty-five miles per hour in a sixty-five mile per hour zone. The district court
14 observed that Defendant did not introduce any independent evidence that caused the
15 court to question the accuracy of the certified radar unit or the use of it by the
16 experienced officer who was certified to operate it and who regularly used it in a
17 reliable manner. The district court also observed that Defendant did not produce any
18 independent evidence to question the officer’s testimony as to the speed limit.
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1 As we indicated earlier, an appellate court does not reweigh the evidence on
2 appeal or substitute our judgment for that of the fact-finder. See Mora,
3 1997-NMSC-060, ¶ 27. Defendant has presented no argument that persuades us that
4 the officer’s testimony about the speed limit and his knowledge and use of the radar
5 equipment was legally insufficient. See State v. Dowling, 2011-NMSC-016, ¶ 20, 150
6 N.M. 110, 257 P.3d 930 (noting that substantial evidence review involves “deference
7 to the resolution of factual conflicts and inferences derived therefrom, and a legal
8 determination of whether the evidence viewed in this manner could support the
9 conviction” (internal quotation marks and citation omitted)). We hold that the
10 evidence supporting the district court’s verdict of guilt was clearly adequate. See, e.g.,
11 Salgado, 1999-NMSC-008, ¶ 25 (defining substantial evidence).
12 CONCLUSION
13 We affirm Defendant’s conviction.
14 IT IS SO ORDERED.
15 __________________________________
16 JONATHAN B. SUTIN, Judge
17 WE CONCUR:
18 _______________________________
19 CYNTHIA A. FRY, Judge
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1 _______________________________
2 M. MONICA ZAMORA, Judge
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