July 05, 2011 – State of New Mexico v. Lauren Owelicio, No. 30,461

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	July 5, 2011
NO. 30,461
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LAUREN OWELICIO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Santa Fe, NM
Josephine H. Ford, Assistant Public Defender
Albuquerque, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Lauren Owelicio appeals from a district court judgment affirming
her conviction in metropolitan court for aggravated driving under the influence of
intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section 66-8-102(D)(1)
(2008) (amended 2010), after a bench trial. 	Defendant contends that her own
uncorroborated extrajudicial statement admitting that she was driving was insufficient
to support her conviction. 	We hold that evidence that someone was driving while
intoxicated established the corpus delicti of the crime and that, regardless, there was
evidence corroborating Defendant’s admission that she was driving. Therefore, we
hold that there was sufficient evidence to support Defendant’s conviction. We affirm.
BACKGROUND
{2} 	The pertinent facts are undisputed . Officer Wayne Harvey testified that around
midnight on August 23, 2007, he responded to a reported accident. He arrived at a
parking lot and found a dark-colored vehicle with a man outside, later identified as
Aaron Atcitty, who appeared to be changing a flat tire. The vehicle had two flat front
tires, and Atcitty was changing the one on the driver’s side. 	Harvey testified that
when he arrived, he remembered seeing a woman, later identified as Defendant, seated
in the passenger seat, although the tape from the video recorder, which was admitted

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into evidence, showed the woman getting into the car on the passenger side as Harvey
arrived. No one was sitting in the driver’s seat.
{3} 	Harvey testified that Atcitty emitted a strong odor of alcohol. He testified that
Atcitty’s speech was very slurred, and he could not initially understand what Atcitty
was telling him. 	Atcitty denied driving the vehicle and claimed that an unnamed
friend had been driving but ran away. Harvey testified that it was clear that Atcitty
denied driving.
{4} 	Harvey then spoke with Defendant. He noticed that she had bloodshot, watery
eyes, and that she emitted a strong odor of alcohol. Harvey asked her to step out of
the vehicle, which she did, albeit slowly. She was swaying back and forth and was
unsure of her balance.
{5} 	Harvey escorted Defendant to the patrol car and asked her who had been
driving. She initially said nothing, then put her head down, let out a deep sigh, and
said “I was driving the vehicle.” 	Defendant told Harvey she was coming from
Graham Central Station, a nightclub, where she had consumed three drinks, and she
had a blowout while driving.
{6} 	Harvey specifically asked Defendant if Atcitty was driving, and she said no.
He accused Defendant of lying because she looked at Atcitty before responding, but
Defendant again told him she was driving. Harvey testified that he gave Defendant

3
several chances to consider what she was saying, and Defendant admitted to driving
each time. He testified that he initially thought both Defendant and Atcitty were lying
and Atcitty was driving until Defendant admitted to driving several times. Harvey
believed Defendant had a “bout of good conscience” when she admitted to driving,
and he testified that he gave her several chances to change her story to ensure that she
was not trying to cover up for Atcitty.
{7} 	After determining that Defendant was driving, Harvey administered field
sobriety tests, and Defendant performed poorly. Harvey concluded that she was under
the influence of alcohol and arrested her for DWI. When Harvey escorted Defendant
back to the vehicle, she went to the passenger side to retrieve her license. Harvey later
administered a breath alcohol test at the police station, and the breath card admitted
into evidence at trial showed Defendant had a breath score of .20/.19.
{8} 	The tape from the video recorder was admitted into evidence and shows that as
Defendant and Harvey approached the vehicle, Atcitty again insisted that his friend
had been driving. Harvey told Atcitty to stop lying because Defendant had already
admitted she was driving. When Defendant again claimed she was driving, Atcitty
responded “No you weren’t, dumb-ass[.]”
{9} 	Atcitty’s sister, Cynthia Qualo, testified that she, her husband, Atcitty, and
Defendant were at Graham Central Station on the night in question. She testified that

4
Defendant had “a lot” to drink while they were at Graham Central Station, while she
herself had one drink. She also testified that she saw Atcitty in the driver’s seat when
Atcitty and Defendant drove away from Graham Central Station.
{10} 	Qualo testified that Atcitty and Defendant were driving behind the car
containing Qualo and her husband, but the cars became separated, and by the time
Qualo found Atcitty and Defendant, they were standing outside the car surrounded by
police officers. 	Qualo testified that she did not see the accident that caused the
blowout and did not know what happened after the cars became separated.
{11} 	At trial, Defendant testified that no one was with her and Atcitty in the vehicle,
and she admitted she had previously told Harvey she was driving. 	However, she
recanted her earlier statements, claiming she only said she was driving because she
wanted to protect Atcitty and his job. She claimed Atcitty’s job was more important
than her job, and he might lose it if he was convicted of DWI. 	In response to
Defendant’s testimony, the metropolitan court judge told defense counsel that his
client was a liar; she either lied to Harvey or was lying to the court and asked which
testimony the court should believe.
{12} 	No one other than Atcitty and Defendant was present during Harvey’s
interactions with them. Harvey could not remember where the keys were located but
admitted Defendant did not have them and that the keys eventually went with Atcitty.

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Harvey testified that he did not know the identity of the registered owner of the car.
We note that Defendant has attached a copy of the car’s registration to her brief in
chief, but we decline to consider this evidence because it was not before the trial court.
See State v. Cumpton, 2000-NMCA-033, ¶ 20, 129 N.M. 47, 1 P.3d 429 (“Counsel
should not refer to matters not of record in their briefs.”).
{13} 	The metropolitan court convicted Defendant of DWI, and the district court
affirmed her conviction. 	On appeal, Defendant challenges the sufficiency of the
evidence to support her conviction. Specifically, she claims there was insufficient
evidence to prove she was driving the vehicle because the only evidence supporting
that finding is her own uncorroborated, extrajudicial admission. We affirm.
CORPUS DELICTI AND/OR TRUSTWORTHINESS RULE
{14} 	In order to convict Defendant of aggravated DWI, the State had to prove
beyond a reasonable doubt that: (1) Defendant operated a motor vehicle; (2) within
three hours of driving, she had an alcohol concentration of at least sixteen
one-hundredths (.16) grams in two hundred ten liters of breath; and (3) her alcohol
concentration resulted from alcohol consumed before or while she drove the vehicle.
See § 66-8-102(D)(1); UJI 14-4506 NMRA. Defendant claims that she was entitled
to a directed verdict because, other than her admission to driving, there was no other
evidence that she drove or operated a motor vehicle.

6
{15} 	Defendant’s contention that her admission was untrustworthy is a challenge to
the sufficiency of the evidence based on the corpus delicti or trustworthiness rule. Cf.
United States v. Brown, 617 F.3d 857, 860 (6th Cir. 2010) (recognizing that the
trustworthiness/corroboration requirement goes to sufficiency, not admissibility). The
corpus delicti rule provides that commission of a crime cannot be proved solely
through the admission of an extrajudicial confession. See State v. Paris, 76 N.M. 291,
294, 414 P.2d 512, 514 (1966) (recognizing that “unless the corpus delicti of the
offense charged has been otherwise established, a conviction cannot be sustained
solely on [the] extrajudicial confessions or admissions of the accused”). 	In New
Mexico, the traditional corpus delicti rule has been abandoned, and courts apply a
modified version of the trustworthiness rule adopted in Paris and recently applied and
interpreted in State v. Weisser, 2007-NMCA-015, ¶ 17, 141 N.M. 93, 150 P.3d 1043
(acknowledging that New Mexico has adopted the modified trustworthiness doctrine
espoused in State v. Lucas, 152 A.2d 50, 61 (N.J. 1959)). 	Defendant claims that
pursuant to the modified trustworthiness rule, there was insufficient proof to
corroborate the trustworthiness of her admission that she was driving the vehicle. The
State contends that the modified trustworthiness rule does not apply to Defendant’s
admission to driving because her identity as the driver is not part of the corpus delicti
of the offense of DWI.

7
STANDARD OF REVIEW
{16} 	The pertinent facts are undisputed. Therefore, we apply a de novo standard of
review to determine as a matter of law whether the uncontested facts were sufficient
to establish the corpus delicti of aggravated DWI pursuant to the modified
trustworthiness doctrine adopted and applied in New Mexico. 	See Weisser, 2007-
NMCA-015, ¶ 7.
CORPUS DELICTI OF DRIVING WHILE INTOXICATED
{17} 	The corpus delicti of an offense requires proof that a crime was committed,
through direct or circumstantial evidence showing that (1) a loss or harm occurred,
and (2) someone’s criminal agency caused the loss or harm. See id. ¶ 10. In State v.
Sosa, 2000-NMSC-036, ¶ 20, 129 N.M. 767, 14 P.3d 32, our Supreme Court
succinctly stated that “the corpus delicti of an offense is established by proof that the
crime was committed, and the identity of the perpetrator is not material.” 	That
statement was recently reaffirmed by our Supreme Court in State v. Wilson, 2011-
NMSC-001, ¶ 16, 149 N.M. 273, 248 P.3d 315.
{18} 	Pursuant to our Supreme Court’s holdings in Sosa and Wilson, and in light of
Defendant’s concession that there was independent evidence that the crime of DWI
was committed by someone, her admission to driving is unnecessary for purposes of
establishing the corpus delicti of DWI because the “identity of the perpetrator is not

8
material” to that determination. Sosa, 2000-NMSC-036, ¶ 20. We cannot and will not
revisit our Supreme Court’s holdings on this issue. See State v. Duarte, 2004-NMCA-
117, ¶ 11, 136 N.M. 404, 98 P.3d 1054 (recognizing that this Court’s ability to
disregard Supreme Court precedent is limited to cases in which “the precise issue has
not been already decided by our Supreme Court”).
{19} 	In response to the State’s contention that Defendant’s admission is not
necessary to establish the corpus delicti, Defendant argues that this case is not about
the corpus delicti rule, but instead is about the due process requirement of
corroboration of an untrustworthy confession. She contends “there is nothing in the
case law indicating that the New Mexico courts intended to limit application of the
trustworthiness doctrine . . . to cases where the corpus delicti is at issue.” She then
argues that the modified trustworthiness doctrine should apply to any use of an
extrajudicial confession, not just with regard to establishing the corpus delicti. We
disagree.
{20} 	The opinion in Sosa was issued long after the modified trustworthiness doctrine
was adopted by our Supreme Court, and the opinion is consistent with that doctrine.
See Weisser, 2007-NMCA-015, ¶¶ 23-24 (recognizing that the “Court in Sosa did not
cite to Paris in its discussion of the corpus delicti of a homicide” but observing that
the result in Sosa is consistent with that rule). As previously discussed, the Court in

9
Sosa held that because there was independent evidence establishing that the crime of
homicide occurred, it did not need to consider the trustworthiness of the defendant’s
confession because his identity as the perpetrator was “nonessential to the [s]tate’s
evidence concerning corpus [delicti].” Sosa, 2000-NMSC-036, ¶ 16. By rejecting the
defendant’s contention that his confession should not be used to establish his identity
as the perpetrator of the crime, our Supreme Court clearly suggested that application
of the modified trustworthiness doctrine is limited to cases in which the corpus delicti
is at issue. See id. ¶¶ 15-20.
{21} 	All remaining New Mexico cases applying the modified trustworthiness
doctrine address the issue of whether the corpus delicti was established by addressing
whether there was evidence, apart from the defendant’s confession, that the crime
actually occurred. See, e.g., Doe v. State, 94 N.M. 548, 549, 613 P.2d 418, 419 (1980)
(holding that the child’s admission to shoplifting was insufficient because, outside of
that admission, there was no evidence to establish that the crime of shoplifting had
occurred). No case considers whether the admission or confession may be used to
establish the identity of the perpetrator or whether an admission or confession must
be corroborated for that purpose.
{22} 	For example, in Weisser, this Court ultimately determined that the corpus delicti
of the crime of criminal sexual contact of a minor (CSCM) was not established

10
because the state failed to present any independent evidence tending to establish the
trustworthiness of the defendant’s admission that he committed the crime. 	See
Weisser, 2007-NMCA-015, ¶¶ 26-36 (holding that the child’s ambiguous behavioral
symptoms were insufficient to establish the requisite “independent proof of the loss
or harm” because they did not establish that the abuse had occurred or that the child
had been harmed, and further holding there was no evidence corroborating the
defendant’s admission that he committed the crime). Likewise, in Wilson, the Court
engaged in a review of the evidence introduced in addition to the defendant’s
confession to show that the crime of homicide had taken place. Wilson, 2011-NMSC-
001, ¶¶ 19-28 (concluding that the corpus delicti of homicide was well supported
because the defendant’s confession was sufficiently trustworthy, and there was
independent evidence showing the child’s death was caused by a criminal act).
Neither 	Wilson 	nor 	Weisser 	considers, 	much 	less 	addresses, 	whether 	the
trustworthiness doctrine applies to require corroboration of a defendant’s admission
for any purpose other than establishing the corpus delicti of the crime.
{23} 	Out-of-state cases cited by Defendant also apply the trustworthiness doctrine
in considering whether there was independent evidence that a crime was committed.
However, in those cases, the defendant’s identity is essential to establishing the corpus
delicti because, due to the nature of the crime charged, in the absence of evidence

11
pertaining to identity, there would be no crime at all. 	See, e.g., Brown, 617 F.3d at
862-63 (observing that it is only when a defendant confesses to a crime that cannot be
committed without identifying the accused, such as felon-in-possession of a firearm,
that “the corroborative evidence must implicate the accused,” but even then, “the
independent corroborating evidence need only show that the crime occurred” (internal
quotation marks and citation omitted)).
{24} 	In Smith v. United States, 348 U.S. 147, 153-54 (1954), the United States
Supreme Court considered whether the corpus delicti or “corroboration rule” applied
to all crimes including the crime of tax evasion. The Court recognized that the crime
of tax evasion has no “tangible injury which can be isolated as a corpus delicti.” Id.
at 154. 	As it could not “be shown that the crime has been committed without
identifying the accused,” the corroborative evidence had to “implicate the accused in
order to show that a crime has been committed.” 	Id. 	Likewise, in Brown, the
defendant’s conviction for being a felon-in-possession of a firearm was based in part
on his admission that he had stolen a firearm from the victim. 	Brown, 617 F.3d at
859. 	On appeal, the court held that the defendant’s confessions were sufficiently
corroborated by evidence that the victim had filed a police report claiming that the gun
and other items were stolen. 	Id. at 863. There did not need to be any independent
evidence establishing that the defendant was the person who actually stole the

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handgun. Id.
{25} 	In this case, unlike Wilson, Weisser, Smith, and Brown, the crime of DWI could
be, and was, established without identifying the driver. 	Therefore, the modified
trustworthiness doctrine is not applicable because the corpus delicti of the crime of
DWI was established by independent evidence showing that someone drove while
intoxicated. See People v. Martinez, 67 Cal. Rptr. 3d 670, 673-74 (Ct. App. 2007)
(observing that “[t]he corpus delicti of the offense of driving under the influence
consists of proof that the automobile was being driven by some person who was under
the influence of alcohol,” and distinguishing cases in which the corpus delicti could
not be established because there was no evidence eliminating other sober persons as
possible drivers).
SUFFICIENT CORROBORATION OF TRUSTWORTHINESS
{26} 	Even if we were to agree with Defendant that the modified trustworthiness
doctrine applied and agreed with the metropolitan and district courts that there needed
to be some evidence corroborating Defendant’s admission that she was driving, we
would nonetheless affirm. 	We would affirm because, contrary to Defendant’s
contentions, 	there 	was 	sufficient 	corroborating 	evidence 	to 	establish 	the
trustworthiness of her statement that she was driving and independent proof to
confirm that she committed the crime of aggravated DWI. See Weisser, 2007-NMCA-

13
015, ¶ 17 (holding that under the modified trustworthiness doctrine, the state must
produce “independent corroborative proof tending to establish that when the defendant
confessed he was telling the truth, plus independent proof of the loss or injury”
(emphasis, internal quotation marks, and citation omitted)).
{27} 	In determining the trustworthiness of Defendant’s extrajudicial statement, we
look not at the circumstances surrounding the statement, but instead at the actual
content of the statement and evidence that corroborates the information contained in
the statement. 	See id. ¶¶ 30-31. 	Defendant acknowledges that evidence was
introduced showing that she and Atcitty were intoxicated and coming from a bar,
Defendant was present in the car, someone was fixing the tire that she said had a blow
out, she and Atcitty were the only people in the vicinity of the car, and Atcitty, the
only other person present, strongly denied driving. There was also evidence that the
vehicle was disabled in a way that indicated impaired driving. Furthermore, although
Harvey testified he saw Defendant on the passenger side when he arrived, the video
tape showed Defendant was just getting into the car on the passenger side as Harvey
arrived. There was also independent evidence that Defendant had a breath alcohol
level of over .16.
{28} 	This 	evidence 	constitutes 	“evidence 	establishing 	the 	trustworthiness 	of
[Defendant’s] confession” id. ¶ 17, because it corroborates Defendant’s admission that

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she was driving to the extent required. Cf. United States v. Lee, 315 F. Supp. 2d 1038,
1045 (D. Ariz. 2003) (acknowledging that the evidence used to show that the crime
occurred can also be used to establish the trustworthiness of the defendant’s
confession); Wilson, 2011-NMSC-001, ¶ 26 (considering evidence that corroborated
the facts contained in the defendant’s confession, including but not limited to, the
testimony of the forensic pathologist who supervised the autopsy that the child’s cause
of death “was consistent with a blockage to his mouth and nose,” which corroborated
the defendant’s admission that he had suffocated the child).
{29} 	We note that the metropolitan court found that Defendant’s admission was
corroborated in part by the fact that she made the admission several times. We agree
with Defendant and the district court that the metropolitan court erred in so finding.
See id. ¶ 30 (stating that multiple extrajudicial statements are not sufficient to establish
the trustworthiness of the statements). However, as recognized by the metropolitan
court and the district court, there was significant other corroborating evidence.
{30} 	Defendant also suggests that her admission was not trustworthy because she
was intoxicated at the time she made the statement, she was under pressure, and she
later provided a motive for lying. 	As previously stated, we do not consider such
circumstances that surround the making of Defendant’s extrajudicial statement. See
Weisser, 2007-NMCA-015, ¶¶ 30-31 (refusing to consider the fact that the defendant

15
had Huntington’s disease and the impact the defendant’s disease had on his
truthfulness).
{31} 	We acknowledge that other evidence indicated Defendant was not the driver.
However, 	the 	mere 	fact 	that 	there 	was 	testimony 	or 	evidence 	calling 	the
trustworthiness of Defendant’s admission into question does not negate that there was
also corroborating evidence. Furthermore, Defendant has failed to apprise us of any
cases in which the existence of some evidence calling the truthfulness of the
defendant’s admission into question is enough to ban the use of the defendant’s
admission despite the fact that other evidence corroborated the admission or tended
to establish its trustworthiness. 	Instead, the existence of contradictory evidence
merely raises a credibility issue to be resolved by the factfinder. See State v. Reddish,
859 A.2d 1173, 1212 (N.J. 2004) (applying the modified trustworthiness doctrine and
holding that once the court determines as a matter of law that the state’s evidence is
sufficient to generate a belief in the trustworthiness of the extrajudicial statement, any
discrepancies or missing details do not undercut the truthfulness of the defendant’s
confession, but instead raise factual issues regarding the reliability of the confession
to be resolved by the factfinder).
SUFFICIENCY OF THE EVIDENCE

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{32} 	Defendant also contends that there was insufficient evidence to establish that
she operated the vehicle as required for a DWI conviction. In analyzing a sufficiency
challenge on appeal, we view the evidence in the light most favorable to the verdict,
resolving all conflicts and indulging all inferences in favor of the verdict. 	State v.
Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). “We do not weigh the
evidence or substitute our judgment for that of the factfinder.” State v. Akers, 2010-
NMCA-103, ¶ 32, 149 N.M. 53, 243 P.3d 757. Moreover, this Court cannot consider
the merit of evidence that may have supported a different result. Id.
{33} 	Defendant does not dispute that she was intoxicated at the time of the accident
or that someone drove the vehicle in an intoxicated state. As previously discussed,
Defendant admitted that she was driving, that there was evidence placing her at the
scene of the accident, that she and Atcitty were the only persons at the scene, that
Atcitty vigorously denied driving, and that the videotape showed her approaching the
passenger side. From this evidence, the metropolitan court could reasonably conclude
that Defendant was driving the vehicle in an intoxicated state. See State v. Mailman,
2010-NMSC-036, ¶¶ 24-28, 148 N.M. 702, 242 P.3d 269 (recognizing that the
factfinder 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

17
drove while intoxicated”); cf. State v. Greyeyes, 105 N.M. 549, 552, 734 P.2d 789,
792 (Ct. App. 1987) (upholding a conviction for DWI based on evidence that the
defendant smelled of alcohol, failed field sobriety tests, and admitted to drinking and
driving into a rail).
{34} 	Although there was other evidence and testimony indicating that Defendant was
not the driver, the factfinder is entitled to weigh these inconsistencies against
Defendant’s admission and the evidence suggesting she was driving. 	See State v.
Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for
the district court acting in its role as factfinder to resolve any conflict in the testimony
of the witnesses and to determine where the weight and credibility lay). We will not
disturb the factfinder’s determinations on these matters. See Akers, 2010-NMCA-103,
¶ 32 (“We do not weigh the evidence or substitute our judgment for that of the
factfinder.”); cf. State v. Sarracino, 1998-NMSC-022, ¶ 24, 125 N.M. 511, 964 P.2d
72 (observing that “although contrary evidence is presented which may have
supported a different verdict, the appellate court will not weigh the evidence or
foreclose a finding of substantial evidence” (internal quotation marks and citation
omitted)).
CONCLUSION

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{35} 	Based upon the foregoing, we affirm Defendant’s conviction for aggravated
DWI.
{36} 	IT IS SO ORDERED.
______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
__________________________________
MICHAEL D. BUSTAMANTE, Judge
__________________________________
CYNTHIA A. FRY, Judge