January 7, 2019- State of New Mexico v. Martin Ventura-Mendoza, No. A-1-CA-37547

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 1/7/2019 9:02 AM
Plaintiff-Appellee, ne ;
Mark Reynolds
V. NO. A-1-CA-37547
MARTIN VENTURA-MENDOZA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stanley Whitaker, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Public Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
VANZI, Chief Judge.
{1} Defendant Martin Ventura-Mendoza, appeals his conviction for driving while
under the influence of an intoxicating liquor (DWI). We issued a notice of proposed

summary disposition proposing to affirm, and Defendant has responded with a timely

memorandum in opposition. We have considered Defendant’s arguments and remain

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unpersuaded that our initial proposed disposition was incorrect. We therefore affirm.
{2} We have already outlined the procedural and factual background in our notice
of proposed summary disposition, and Defendant indicates in his memorandum in
opposition that he does not take issue with the district court’s recitation of the facts
or this Court’s reliance on the district court’s recitation. Therefore, in order to avoid
unnecessary repetition, we will focus instead on the contents of Defendant’s
memorandum in opposition, discussing only such facts as are relevant to his
arguments.

{3} In our notice of proposed summary disposition, this Court proposed to adopt
the district court’s memorandum opinion and its analysis regarding the sufficiency of
the evidence. In his memorandum in opposition, Defendant argues that the district
court’s attempt to distinguish this case from State v. Cotton, 2011-NMCA-096, 150
N.M. 583, 263 P.3d 925, is misplaced and that Cotton is directly on point. [MIO 2]
We disagree. In Cotton, police encountered the defendant in the driver’s seat of a van
parked on a roadside. The defendant admitted that he had consumed a beer recently,
and was placed under arrest after failing FSTs and refusing to submit to chemical
testing. On appeal, this Court held that the evidence was insufficient to convict the

defendant of DWI because there was no evidence as to the time of driving, so there

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was no evidence to show that the driving and impairment overlapped. Accordingly,
we held that, although it would have been reasonable for the jury to conclude that the
defendant drove to the place where he was arrested, there was insufficient evidence
to allow the jury to conclude that the defendant had been impaired by alcohol at the
time. /d. J 14-15.

{4} Here, in contrast, Defendant admitted to drinking alcohol before he drove to
the location where he was found by Deputy Carhart. When Deputy Carhart
encountered Defendant, he found Defendant asleep in the vehicle with what appeared
to be vomit on his shirt. Defendant had bloodshot watery eyes, an odor of alcohol,
and he refused to submit to field sobriety tests (FSTs). Additionally, a breath card was
introduced into evidence that showed Defendant had a blood alcohol content of 0.27.
[RP 84-90] We are of the opinion that this evidence was sufficient to permit the jury
to infer that Defendant was impaired to the slightest degree when he drove the
vehicle. See State v. Mailman, 2010-NMSC-036, ff 2-5, 24, 148 N.M. 702, 242 P.3d
269 (observing that there was sufficient circumstantial evidence to support a
conviction for past driving while impaired to the slightest degree based on the
defendant’s presence behind the wheel of a parked vehicle, admissions to having

driven and having consumed alcohol, refusal either to perform field sobriety tests or

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to provide a breath sample, the presence of an open can of beer in the vehicle, and a
variety of indicia of intoxication including odor of alcohol, disorientation and
confusion, difficulty maintaining balance, and bloodshot, watery eyes).

{5} | Weunderstand Defendant to argue that, despite evidence that Defendant drank
alcohol before he drove, the evidence was insufficient to show that Defendant was
impaired by alcohol at that time. However, the evidence described above, including
Defendant’s admission to drinking beer and tequila, coupled with his BAC level and
the evidence that Defendant did not drink any alcohol after he arrived at the location
because Deputy Carhart saw no evidence of alcohol containers in the vehicle or the
immediate area, a jury could infer that Defendant was impaired to the slightest degree
when he drove the vehicle. See id. JJ 24-28 (recognizing that the fact-finder may
infer that the accused drove while intoxicated based on circumstantial evidence that
includes “the accused’s own admissions, the location of the vehicle next to the
highway, or any other similar evidence that tends to prove that the accused drove
while intoxicated”).

{6} Finally, Defendant argues that disbelief about his claim that he only drank one

beer before driving cannot substitute for affirmative proof. [MIO 2-3] The evidence

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described above, however, constitutes sufficient affirmative proof which is not
dependent on belief or disbelief of Defendant’s claim that he drank only one beer
before driving. Additionally, the fact-finder was not required to accept Defendant’s
story as to when he consumed the alcohol he admitted to drinking in the face of the
contradictory evidence showing that he did not drink the alcohol after he drove the
car. See State v. Delgado, 2010-NMCA-078, J 6, 148 N.M. 870, 242 P.3d 437 (“It is
for the jury to resolve the conflicts in the evidence.”); see also State v. Stefani,
2006-NMCA-073, 4 39, 139 N.M. 719, 137 P.3d 659 (noting that the jury is free to
reject the defendant’s theory of the case).

CONCLUSION

{7} For these reasons, we affirm Defendant’s conviction.

{8} IT IS SO ORDERED.

NZI, Chief Judge

WE CONCUR:

f——}
JEDNIFER L. ATTREP, Judge