DocketNumber: A-1-CA-37216
Filed Date: 11/7/2018
Status: Non-Precedential
Modified Date: 12/14/2018
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. A-1-CA-37216 5 MARTIN LIBBY, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean, Jr., District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Kimberly M. Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 {1} Defendant Martin Libby appeals his conviction for driving while under the 19 influence (DWI) of intoxicating liquor or drugs contrary to NMSA 1978, Section 66- 1 8-102(C)(l) (2016). This Court’s calendar notice proposed to summarily affirm. 2 Defendant filed a memorandum in opposition to this Court’s proposed disposition. 3 Not persuaded by Defendant’s arguments, we affirm. 4 {2} Defendant continues to argue that there was insufficient evidence for the jury 5 to find beyond a reasonable doubt that he was driving or operating a motor vehicle, 6 a required element to support a finding of guilt for DWI. Defendant asserts that aside 7 from the fact that the key was in the ignition and he was in the driver’s seat, there was 8 no evidence that he drove or intended to drive, particularly given his explanation that 9 he was installing the car radio and did not intend to drive. [MIO 6-7] While this 10 constituted conflicting evidence, we disregard all evidence and inferences that support 11 a different result. See State v. Rojo,1999-NMSC-001
, ¶ 19,126 N.M. 438
,971 P.2d 12
829; see also State v. Apodaca,1994-NMSC-121
, ¶ 5,118 N.M. 762
,887 P.2d 756
13 (“Only the jury may resolve factual discrepancies arising from conflicting evidence.”). 14 {3} Defendant also continues to argue that the State failed to prove past driving 15 because the only witness describing the surveillance video acknowledged it did not 16 clearly depict Defendant. [MIO 7-8] State v. Boyer,1985-NMCA-029
, ¶ 24,103 N.M. 17
655,712 P.2d 1
; See State v. Franklin,1967-NMSC-151
, ¶ 9,78 N.M. 127
,428 P.2d 18
982. The jury was free to give whatever weight it chose to give the surveillance video 19 admitted by the district court, and “it becomes a jury determination as to the accuracy 2 1 of a witness’ identification.” State v. Flores,2010-NMSC-002
, ¶ 60,147 N.M. 542
, 2226 P.3d 641
(internal quotation marks and citation omitted). We do not reweigh the 3 evidence, “[n]or may we substitute our judgment for that of the jury.” Apodaca, 41994-NMSC-121
, ¶ 5. 5 {4} In the alternative, Defendant argues that even if the surveillance video is 6 sufficient to prove he drove the car to the Walmart parking lot, it does not prove that 7 he was impaired at that time, since the State failed to prove he had already consumed 8 alcohol before arriving. [MIO 9] Defendant relies on State v. Cotton, 92011-NMCA-096
, ¶ 14,150 N.M. 583
,263 P.3d 925
, for the contention that, like that 10 case, the State here failed to establish that he drove after he had consumed alcohol. 11 [Id.] However, in Cotton, the defendant’s car was discovered parked on the side of the 12 road, with the defendant sitting in it intoxicated. The court determined that evidence 13 alone, without more, did not prove the defendant drove while impaired.Id.
However, 14 in this case, there was evidence that the surveillance video showed Defendant driving 15 the car to the Walmart parking lot forty-five minutes prior to the dispatch; when the 16 officer arrived shortly after, he observed alcohol containers inside the car; and 17 Defendant made statements that he consumed alcohol. [DS 2] We propose to conclude 18 that there was sufficient evidence to prove the State’s theory that Defendant drove 3 1 before the officer made contact with him and that he was impaired at that time. 2 Apodaca,1994-NMSC-121
, ¶¶ 3, 5. 3 {5} For these reasons, and those stated in the notice of proposed disposition, we 4 affirm. 5 {6} IT IS SO ORDERED. 6 ______________________________ 7 MICHAEL E. VIGIL, Judge 8 WE CONCUR: 9 _____________________________ 10 HENRY M. BOHNHOFF, Judge 11 _____________________________ 12 DANIEL J. GALLEGOS, Judge 4