December 13, 2016- State of New Mexico v. Darla Bregar, No. 34,462 cons. 34,469, HnWG

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: December 13, 2016
NO. 34,462 (consolidated with No. 34,469)
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DARLA BREGAR,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Matthew J. O’Gorman, Assistant Appellate Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	New Mexico State Highway 217, in Bernalillo County, begins in Yrisarri,
running east a few miles before abruptly turning due north. From there the road tracks
a straight line alongside the Sandia mountain range. Bernalillo County Sheriff’s Office
(BCSO) Deputy Axel Plum was working a late shift patrolling Highway 217 on the
night of December 1, 2008, when he discovered a wrecked Jeep Cherokee by the side
of the highway. Deputy Plum found two people on the ground near the Jeep:
Defendant Darla Bregar and Thomas Spurlin. Bregar was on the driver’s side of the
car, her body contorted into a position that Deputy Plum would describe at trial as
“grotesque.” Spurlin was deceased, his body lying further from the Jeep on the
passenger side. Bregar was taken to the hospital by ambulance and survived.
{2} 	Shortly before 5:00 a.m., BCSO Deputies Lawrence Tonna and Gilbert Garcia
went to the hospital to interview Bregar. Bregar admitted to driving the vehicle the
night before, although she did not remember the crash. Deputy Garcia arrested her and
obtained a warrant to have her blood drawn and tested. The result of the test showed

1An expert witness for the State at trial estimated that Bregar’s BAC would
have been around 0.19 at the time of the accident.
2
that Bregar had a blood alcohol concentration (BAC) of 0.09 at the time of the blood
draw.1
{3} 	A grand jury indicted Bregar, charging her with one count of vehicular
homicide, contrary to NMSA 1978, Section 66-8-101 (2004, amended 2016), and one
count of per se DWI, contrary to NMSA 1978, Section 66-8-102(C)(1) (2008,
amended 2016). At trial, Bregar testified that she did not remember the accident or
whether she was driving the Jeep. She maintained that at the time of the accident, she
had been wearing a knee brace that would have prevented her from operating a
vehicle. Thus, Bregar’s defense was that Spurlin was the driver, or at least that the
State had failed to prove that Bregar had been driving beyond a reasonable doubt. The
jury returned guilty verdicts on both counts charged in the indictment.
{4} 	Bregar’s appeal of her conviction concerns the district court’s denial of her
pretrial motion to suppress her statements to Deputy Tonna at the hospital and its
admission of certain expert opinion testimony by Deputy Garcia.
MOTION TO SUPPRESS
{5} 	Bregar’s argument in district court and on appeal is that her inculpatory
hospital-bed statements to the police officers were not voluntarily made, and therefore,
their admission into evidence at trial violated her constitutional right to due process

3
of law under the Fourteenth Amendment of the United States Constitution. See
Colorado v. Connelly, 479 U.S. 157, 163 (1986). We apply a “totality of the
circumstances” test to these claims, Aguilar v. State, 1988-NMSC-004, ¶ 7, 106 N.M.
798, 751 P.2d 178 (internal quotation marks and citations omitted), derived from the
“three-phased process” set out in Justice Frankfurter’s opinion for the United States
Supreme Court in Culombe v. Connecticut, 367 U.S. 568, 603-05 (1961).
In the first phase, there is the business of finding the crude
historical facts, the external, ‘phenomenological’ occurrences and events
surrounding the confession. In other words, the court begins with a
determination of what happened. We are not restricted to examining only
those facts deemed dispositive by the trial court. . . . However, when
faced with conflicting evidence, we will defer to the factual findings of
the trial court, as long as those findings are supported by evidence in the
record. . . .
The second phase is a determination of how the accused reacted
to the external facts. This is an admittedly imprecise effort to infer—or
imaginatively recreate—the internal psychological response of the
accused to the actions of law enforcement officials.
The third phase is an evaluation of the legal significance of the
way the accused reacted to the factual circumstances. This requires the
application of the due process standards to the court’s perception of how
the defendant reacted. We are not required to accept the trial court’s legal
conclusion that the police officers did not act coercively.
State v. Cooper, 1997-NMSC-058, ¶¶ 26-28, 124 N.M. 277, 949 P.2d 660 (alteration,
internal quotation marks, and citations omitted).

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{6} 	A defendant’s right to seek exclusion of his or her statements to police on the
basis of whether the confessed statement was “voluntary” is legally grounded upon
an established principle that the use of “certain interrogation techniques, either in
isolation or as applied to the unique characteristics of a particular suspect, are so
offensive to a civilized system of justice that they must be condemned.” Connelly, 479
U.S. at 163 (internal quotation marks and citation omitted). The right to exclude a
defendant’s statement in state court is derived from Section 1 of the Fourteenth
Amendment, which provides that “no [s]tate shall deprive any person of life, liberty,
or property, without due process of law.” See Connelly, 479 U.S. at 163.
{7} 	Whether a statement to police officers is “involuntary” and therefore subject to
exclusion under the Fourteenth Amendment does not turn solely on whether the
defendant makes a statement of his own free will, however. For example, in Connelly,
the 	defendant 	confessed 	to 	committing 	a 	murder 	as 	a 	result 	of 	“command
hallucinations . . . [that] interfered with [the defendant’s] . . . ability to make free and
rational choices.” Id. at 161 (internal quotation marks omitted). The Court noted that
although “mental condition is surely relevant to an individual’s susceptibility to police
coercion, mere examination of the confessant’s state of mind can never conclude the
due process inquiry.” Id. at 165. Instead, there must be some indication that coercive
police misconduct brought about the confession. Id.; see also Aguilar, 1988-NMSC-

5
004, ¶ 20 (“[A d]efendant’s mental condition by itself without coercive police conduct
causally related to the confession is no basis for concluding that the confession was
not voluntarily given.”).
{8} 	The district court held a lengthy hearing on the motion to suppress. Four fact
witnesses testified for the State about the circumstances surrounding Bregar’s
confession, and Bregar called a fifth witness to testify as an expert in “general
nursing” regarding Bregar’s injuries and mental state at the time of the interview—i.e.,
explaining “how [Bregar] reacted to the external facts.” Cooper, 1997-NMSC-058,
¶ 27 (internal quotation marks and citation omitted). Bregar herself did not testify at
the hearing on her motion to suppress. Although the district court made relatively
scant findings of fact, the witnesses’ testimony does not conflict in any significant
material respect. We therefore summarize each witness’s testimony before evaluating
the voluntariness of Bregar’s statements.
{9} 	The first witness at the suppression hearing was Deputy Plum, who testified that
Bregar was “nonresponsive” when he first saw her at the scene of the crash and that
her breathing sounded “distressed[.]” Deputy Plum immediately called for emergency
medical assistance, but did not attempt to reposition Bregar so that she could breathe
more easily because he was afraid that doing so would aggravate her other injuries.

6
{10} 	The second witness to testify at the suppression hearing was Emergency
Medical Technician Carol Morgan (EMT Morgan). EMT Morgan testified that she
arrived at the accident scene shortly after Deputy Plum called for medical assistance.
Bregar was able to tell Morgan her name, but “[i]t was hard to make out what [Bregar]
was saying.” Morgan smelled alcohol on Bregar’s breath and noted that Bregar was
unable to observe events around her or comply with simple requests. Bregar’s blood
pressure was found to be within “the norm for being involved in an accident.” Morgan
and several other EMTs at the scene strapped Bregar to a long spine board and put her
in an ambulance.
{11} 	Hospital records show that Bregar had a broken jaw, several fractured ribs,
seven broken vertebra, and a “subarachnoid hemorrhage that had an overlying
hematoma, which means that she received a [blow] to her head, considered a traumatic
injury.” Bruising, gas, and fluids in and around Bregar’s lungs and chest wall would
have made it difficult for her to breathe. Bregar was receiving oxygen through a tube
inserted into her nose.
{12} 	EMT Morgan also recalled that hospital personnel assessed Bregar’s mental
capacity using the “Glasgow Coma Scale ” (GCS). The GCS is a ubiquitous
assessment of brain trauma using a patient’s eye, verbal, and motor responses to
instructions. Eye movements are assessed on a scale of 1 to 4, verbal responses on a

7
scale of 1 to 5, and motor responses on a scale of 1 to 6. A GCS Score of 8 is
comatose; 15 is considered “normal.” Hospital records showed that Bregar’s GCS
Score was 12 when she was admitted, but that by the next day (it is unclear at what
precise time this second assessment occurred), Bregar’s GCS Score had reached 15.
{13} 	The third witness to testify at the hearing on Defendant’s motion to suppress
was Deputy Tonna. At the time of the crash, Deputies Tonna and Garcia were both
members of the BCSO Traffic Investigation Unit, and were dispatched to the scene
to conduct an accident investigation. Deputy Tonna was the lead investigator,
gathering evidence and documenting the scene of the crash, while Deputy Garcia took
photographs and other measurements. Deputy Tonna noted that the damage to the Jeep
was “consistent with it being involved in a rollover.” He also observed a large bottle
of Svedka vodka on the ground near the vehicle, “completely clean[,] like it had just
been placed there.” Deputy Tonna was told by EMT Morgan that Bregar had a “strong
odor of alcohol emanating from her breath, prior to being transported to the hospital.”
{14} 	Before interviewing Bregar, Deputy Tonna learned that other officers had
already been dispatched to the hospital to conduct a DWI investigation, but had been
turned away by hospital staff because Bregar “was [still] actively being treated[.]” The
interview did not begin until 5:00 a.m., and was not recorded. Deputy Tonna described
the interview as follows:

8
I started out by identifying ourselves. . . and then I asked [Bregar] if she
knew where she was at. She said she was at the hospital. [I] then asked
her what had happened with the crash, and at first she said that she didn’t
wreck. Then, I asked her again where she had been this evening, and she
stated that her and Anthony had gone to her friend’s, Myra’s house, in
Tijeras, New Mexico, and that while there, they stayed for two hours and
had a few beers.
. . . .
[T]hen I asked her to describe what type of vehicle she had or she drove.
She said she had a ‘97 Jeep Cherokee. Then, I asked her what their plans
were after leaving from Myra’s house, and she said that—her words
were, “I was taking [Mr. Spurlin] home.” Then, I asked her if anybody
else drives her vehicle, and she said nobody drives her vehicle. I think
her words were, “I don’t let anybody drive my Jeep.”
. . . .
I asked her again how she came to the hospital, and she said she didn’t
know, and that’s when I told her that she had been involved in a rollover
crash and that Mr. Spurlin had passed away from his injuries. . . . She
became very upset. She started to kind of become hysterical, started
crying. . . . She said, “What? I was driving?” And she said, “But I never
left home.”
{15} 	Deputy Tonna also testified about Bregar’s appearance and demeanor during
the interview. He said that Bregar’s “face was really swollen[,] I think she had
bloodshot—red, bloodshot, watery eyes, and I could smell a strong odor of alcohol
coming from her.” Deputy Tonna said that Bregar was slurring her words and “spoke
slowly, but she answered the questions.” He added that Bregar seemed “conscious and
somewhat 	alert” 	during 	the 	interview. 	When 	cross-examined, 	Deputy 	Tonna

2The district court ordered that Bregar’s post-arrest statements be suppressed
because Bregar was not given a Miranda warning when she was arrested. The State
has not appealed that order.
9
responded that he had no contact with medical personnel regarding Bregar’s state of
mind or condition and was unaware of Bregar’s injuries beyond what he had learned
from EMT Morgan. The interview of Bregar took about ten minutes. At its
conclusion, Deputy Garcia notified Bregar that she was under arrest. 2
{16} 	Deputy Garcia was the final State’s witness to testify. His testimony as to what
Bregar said in response to Deputy Tonna’s questions largely mirrored Deputy Tonna’s
own testimony, so we will not summarize that aspect of Deputy Garcia’s account here.
Deputy Garcia did provide some further detail as to Bregar’s demeanor: Deputy
Garcia described Bregar as “awake,” “coherent,” and observed that “she didn’t have
any problem answering” Deputy Tonna’s preliminary questions about her name,
address, and other identifying details. Deputy Garcia testified that after Deputy Tonna
told her that Spurlin had died, her demeanor changed: “[a]fter [being told of Spurlin’s
death], she started telling us that she didn’t know where she was[.]”
{17} 	Defendant’s only witness at the suppression hearing was Michele Wilkie, a
nurse called by the defense to testify as an expert. Wilkie’s opinion testimony was
based on her review of police reports and hospital records. Wilkie opined that Bregar
would have been “disoriented” at the time she was interviewed by Deputy Tonna.

10
Wilkie also opined that the lingering effects of alcohol and pain medication would
have added to her confusion and lethargic behavior, which in Wilkie’s opinion
explained why Bregar appeared unresponsive to hospital personnel. Wilkie added that
she would not have let Bregar speak with police because she would have been
“concern[ed] . . . that she was not stable enough, medically or psychologically, to
answer questions regarding the accident.” Wilkie believed that any statements Bregar
made to the police would be unreliable because “[s]he really didn’t know what had
happened to her.”
{18} 	The district court denied the motion to suppress, concluding that “[Bregar’s]
statement was voluntary and not coerced. The testimony by the officers was credible.
The description of the conversation made sense. Her statements were coherent. Her
responses were appropriate to the questions asked by the officers.”
DISCUSSION
{19} 	On appeal, Bregar makes three related arguments to support her contention that
her pre-arrest hospital-bed statements to Deputy Tonna were involuntary. First, Bregar
asserts that Deputy Tonna’s failure to make an audio recording of the interrogation
means that the State failed to carry its burden of proving that her statements were
voluntary. See Cooper, 1997-NMSC-058, ¶ 30 (“The [state] bears the burden of
proving by a preponderance of the evidence that a defendant’s statement was

11
voluntary.”). But Bregar did not preserve this argument for appellate review by
making it to the district court. See Rule 12-216(A) NMRA (“To preserve a question
for review it must appear that a ruling or decision by the district court was fairly
invoked[.]”); see also State v. Vandenberg, 2003-NMSC-030, ¶ 52, 134 N.M. 566, 81
P.3d 19 (“In analyzing preservation, [the appellate courts] look to the arguments made
by [the d]efendant below.”). Bregar’s motion to suppress states that “the State has
deprived [the district c]ourt of the ability to listen to the actual interview Deputy
Tonna conducted 	with 	[Bregar] and 	to 	review 	de 	novo 	whether 	the 	deputy
overreached[.]” But this is an argument that the district court should not credit Deputy
Tonna’s recollection of the interrogation because he did not record it with his belt
tape. The district court rejected this argument, finding instead that Deputy Tonna’s
testimony as to what happened was credible. Faced with the district court’s decision
to accept the police officer’s undisputed account of what happened (we note again that
Bregar herself did not testify at the hearing) and the fact that we review the district
court’s assessment of exactly what happened with substantial deference, Cooper,
1997-NMSC-058, ¶ 26, Bregar now argues an entirely different proposition on appeal:
that as a matter of law, the State’s failure to submit into evidence an audio recording
of an interrogation means that the State cannot satisfy its burden of proving that a

12
statement was made voluntarily. We decline to address Bregar’s first argument
because she did not make it below.
{20} 	Bregar’s second argument is that Nurse Wilkie’s testimony at the suppression
hearing established that “Bregar [was] susceptible to confusion[, and t]his type of
diminished capacity is recognized throughout voluntariness case law.” To the extent
that Bregar is arguing that her susceptibility alone rendered her hospital-bed
admissions involuntary, Bregar again did not preserve the argument by making it
below. Even if she had preserved it, Connelly rejected an indistinguishable argument
when it held that inculpatory statements made as a result of a mental or physical
condition are not sufficient to render the statements involuntary in the absence of a
causal relationship between the physical or mental condition and police misconduct.
See 479 U.S. at 165 (stating that “mere examination of the confessant’s state of mind
can never conclude the due process inquiry”). Instead, what Bregar must show is that
Deputy Tonna obtained Bregar’s admission using “intimidation, coercion, deception,
assurances, or other police misconduct that constitutes overreaching.” State v. Munoz,
1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and
citation omitted).
{21} 	Bregar’s final argument is that because Deputy Tonna was at the very least
aware that Bregar was under the influence of alcohol at the time he asked her

13
questions, his questioning amounted to “deception and manipulation of a known
impairment” and thus requires us to reverse the district court’s determination that
Deputy Tonna did not use coercion to obtain Bregar’s admission. We disagree.
Initially, we note that Nurse Wilkie’s testimony was far from unequivocal about
whether the medical records established that Bregar was susceptible to coercion.
While she testified that a subarachnoid hemorrhage and lingering influence of alcohol
and pain medication would have caused Bregar to feel disoriented, confused, and
lethargic, Wilkie also noted that Bregar was scoring a 15 on the GCS (i.e., a normal
level of consciousness) by the next day. Deputy Tonna and Deputy Garcia’s testimony
that Bregar seemed responsive and aware of the circumstances during their
interview—which the district court credited—supports a finding that Bregar was lucid
and not otherwise specifically susceptible to coercion. The deputies testified that
Bregar told them she knew she was in the hospital, that she “spoke slowly, but . . .
answered the questions[,]” and seemed “conscious and somewhat alert” during the
interview. Significantly, Bregar immediately retracted her admission and denied being
the driver when she was informed that Spurlin had died as a result of the accident. The
fact that Bregar changed her story and denied driving when she found out that Spurlin
had died suggests that Bregar was not suffering from a diminished capacity at the time
of her admissions. In other words, this evidence suggests that Bregar was aware that

14
a police officer was asking her questions and that her answers to those questions could
implicate her in the commission of a crime. See id. ¶ 21 (“[I]f [a] confession is the
product of an essentially free and unconstrained choice by its maker, that is if [s]he
has willed to confess, it may be used against [her].” (internal quotation marks and
citation omitted)).
{22} 	But even if Bregar had demonstrated some susceptibility to coercive police
interrogation techniques, Bregar would need to point to coercive conduct by the police
that caused her to admit to being the driver. See id. ¶ 23. Here, the district court record
does not support such a contention. In this regard, we note Deputy Tonna had no
contact with medical personnel regarding Bregar’s state of mind or condition and was
unaware of Bregar’s injuries beyond what he had learned from EMT Morgan. While
he had been made aware that hospital personnel would not allow Bregar to be
interviewed while being actively treated, nothing in the record suggests that Bregar’s
treatment was ongoing when Deputy Tonna spoke with her. Thus, there is no direct
evidence that Deputy Tonna knew of any specific condition from which Bregar
suffered and sought to exploit it by questioning her.
{23} 	The circumstantial evidence supports a similar conclusion. First, Deputy
Tonna’s conversation with Bregar was less than 10 minutes long, so there is no
indication that Deputy Tonna deliberately prolonged the encounter with the hope of

15
overcoming Bregar’s resistance to questioning. See id. ¶¶ 35-36 (rejecting argument
that a 100-minute-long interrogation “in conjunction with other factors” rendered a
confession involuntary and citing other cases where confessions during even longer
periods of questioning were found to be voluntarily made); see also State v.
LaCouture, 2009-NMCA-071, ¶¶ 13-14, 146 N.M. 649, 213 P.3d 799 (finding
admissions made during seven-minute hospital-bed interview voluntary). Deputy
Tonna’s open-ended questions to Bregar asking her to describe the vehicle she drives,
what she was doing the previous night, and her interaction with Spurlin did not
suggest answers or otherwise pressure Bregar to admit that she was the driver. Cf.
State v. Rettenberger, 1999 UT 80, ¶ 40, 984 P.2d 1009 (finding a confession
involuntary where, among other facts, the defendant’s “confession contain[ed] little
information that was not first provided or suggested by the interrogating officers”).
Nor is there any indication that Bregar was restrained or isolated by police during her
interrogation: any immobility was incidental to her hospitalization for injuries suffered
during the accident, not a police effort to coerce statements by isolating the defendant.
See State v. Maestas, 2012 UT App 53, ¶ 33, 272 P.3d 769 (“[The] Officer . . . did not
cause [the d]efendant to be isolated from his friends and family or to be connected to
medical equipment. Hospital policy and medical treatment, not police tactics, caused
[the d]efendant’s isolation and lack of mobility[.]”).

16
{24} 	In LaCouture, we evaluated a factually similar hospital-bed admission and
ultimately concluded that it was not an involuntary confession under the Fourteenth
Amendment. There, the defendant admitted to taking methamphetamine earlier that
day and had suffered injuries from a car accident, including “damage to his hip and
spine, broken ribs, fractured leg bones (both tibia and fibula), and internal bruising.”
2009-NMCA-071, ¶¶ 4, 12. We held that the defendant’s statements were voluntary
because “[d]espite these injuries, [the defendant] was able to respond coherently” to
the police officer’s questions, and there was no indication that the police officers had
“threaten[ed him], promise[d] special treatment in return for [his] cooperation,
physically abuse[d him], or engage[d] in coercion of any type.” Id. ¶¶ 12-13. We
further noted that the questions the officer asked “were benign, revolving around the
facts of the accident.” Id. ¶ 13.
{25} 	Both Bregar and the defendant in LaCouture suffered injuries from a car
accident, were under the influence of mind-altering substances, and were confined to
a hospital bed at the time of questioning by police officers. Bregar emphasizes that
unlike the defendant in LaCouture, Bregar suffered a traumatic brain injury as a result
of the accident. But as we have already noted, Deputy Tonna did not know of this
injury; he cannot have intended to take advantage of an injury that he did not know
Bregar had suffered. Bregar asserts that Deputy Tonna failed to “ascertain . . . Bregar

17
understood what was going on” before asking her questions. But she does not explain
why Deputy Tonna’s preliminary questioning of Bregar to ascertain that she knew
where she was and Deputy Garcia’s testimony that she seemed “awake” and
“coherent,” and “didn’t have any problem answering” Deputy Tonna’s questions is
a legally significant distinction from the officer in LaCouture asking the defendant if
he “understood” the questions he was being asked. 2009-NMCA-071, ¶¶ 12, 18. In
any event, while a police officer’s subjective knowledge of an infirmity may be
probative of a finding that the officer sought to exploit it through coercive police
tactics, Bregar does not explain why an absence of such knowledge is the same. See
Maestas, 2012 UT App 53, ¶ 40 (“A police officer is not routinely required to inquire
into a defendant’s medical condition prior to questioning him. . . . This is especially
true of those injured in auto accidents, with which most police officers will have
extensive experience and a meaningful frame of reference, and thus less need to seek
guidance about the effects of trauma.” (citations omitted)). To the extent that Bregar
is arguing that officers have an affirmative duty to ascertain an interviewee’s medical
condition prior to asking questions, the argument was NOT preserved below, so we
have no need to grapple with the practical ramifications of such a rule or how it might
affect the outcome of this appeal. See id. ¶ 40 n.8 (noting that “[a]pplicable patient
privacy laws and hospital privacy regulations may well have prevented hospital

18
personnel from sharing” information about a patient’s injuries with an investigating
officer). 	Applying 	Cooper’s 	three-phase 	totality-of-the-circumstances 	test, 	we
conclude that Bregar’s admission to Deputy Tonna was not the result of coercion and
so is not subject to suppression under the Due Process Clause of the Fourteenth
Amendment. Accordingly, we affirm the district court’s denial of Bregar’s motion to
suppress those statements.
The District Court’s Admission of Deputy Garcia’s Opinion Testimony
{26} 	At trial, the district court permitted Deputy Garcia (the same Deputy Garcia
who photographed and measured the accident scene and who accompanied Deputy
Tonna when Bregar was interviewed at the hospital) to separately testify as an expert
in accident reconstruction. In that capacity, Deputy Garcia informed the jury of his
opinion that Bregar was driving the Jeep when it crashed. This opinion was based on
several inferences and assumptions that we summarize here before addressing
Bregar’s argument that the opinion should have been excluded. First, Deputy Garcia
considered the location of “yaw” marks on Highway 217 where the Jeep left the road
and tumbled down a 3- to 5-foot embankment. Deputy Garcia found “trip” marks
where the front left tire of the Jeep caught the dirt on the embankment as it rolled.
Based on the “yaw” and “trip” marks and damage to the tires on the left-hand side of
the Jeep, Deputy Garcia concluded that as the Jeep left the road it rolled over twice on

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the driver’s side before coming to a rest. Spurlin’s body was found on the passenger
side of the Jeep about 15 feet away, and Bregar was found on the driver’s side of the
Jeep, closer to it. Important to Deputy Garcia’s assessment, the only window of the
Jeep that had been broken during the rollover was that on the front passenger side, so
Deputy Garcia reasoned that both Bregar and Spurlin were ejected from the Jeep
through the same window.
{27} 	From this, Deputy Garcia posited that Bregar was the driver because Spurlin
was closer to where the Jeep rolled over the first time, while Bregar was found closer
to where the Jeep came to rest on the driver’s side. Asked how Bregar ended up on the
driver’s side of the Jeep when it was his opinion that she was ejected from the
passenger window, Deputy Garcia explained that “when [Bregar was] getting ejected
. . . [the] vehicle [was] tossing her body towards the direction it’s rolling.” On cross-
examination, Deputy Garcia agreed with Bregar’s attorney that if Bregar had indeed
been thrown from the passenger-side window, his opinion required him to “assume”
that Bregar had flown over the car in order to land on the driver’s side of the Jeep.

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DISCUSSION
{28} 	Bregar makes three arguments on appeal: (1) the district court abused its
discretion when it found that Deputy Garcia was qualified under Rule 11-702 NMRA
to offer an expert opinion about “occupant kinematics”; (2) Deputy Garcia’s opinion
“was based on personal opinion rather than a well-recognized scientific principle”;
and (3) Deputy Garcia “was unaware of the predicate facts necessary to make his
opinion relevant.” We must first sort out our standard of review in this instance, which
depends upon whether these issues were raised below or are newly raised to this
Court. To this end, if an evidentiary issue is preserved by objection, we review the
district court’s decision to admit or exclude evidence for an abuse of discretion, which
means the decision was “clearly against the logic and effect of the facts and
circumstances of the case.” State v. Loza, 2016-NMCA-088, ¶ 10, 382 P.3d 963
(internal quotation marks and citation omitted). If an appellant fails to object to the
admission of evidence below, on appeal we will only review for plain error: that is,
an error that “affect[s] a substantial right[.]” Rule 11-103(E) NMRA.
{29} 	Bregar concedes that her second and third arguments were not preserved and
therefore subject to review for plain error, but argues that her first argument was
preserved and therefore subject to review for an abuse of discretion. We disagree.
Bregar’s attorney made the following objections to Deputy Garcia’s qualification to

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testify as an expert: his testimony to the jury (beyond offering his own personal
observations at the accident scene) would not be helpful because the “car . . . lost
control, went off the road, went into the ditch, and rolled”; his opinion that both
occupants of the Jeep were ejected from the front passenger window was a “legal
conclusion[ and] a question for the jury”; and his testimony as to which Jeep occupant
was in which seat, and who was ejected first, was based on “[f]acts not in evidence at
this point.” Stated simply, it is difficult to point to anything within the objections
made that appears to challenge Deputy Garcia’s qualification to present expert
testimony or the methodology by which his opinion was formed. As we have stated,
for an objection to preserve an issue for appeal, “it must appear that [the] appellant
fairly invoked a ruling of the [district] court on the same grounds argued in the
appellate court.” Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745
P.2d 717. We require parties to preserve their arguments by making them in the
district court, in part, in order to
(1) . . . specifically alert the district court to a claim of error so that any
mistake can be corrected at that time, (2) to allow the opposing party a
fair opportunity to respond to the claim of error and to show why the
court should rule against that claim, and (3) to create a record sufficient
to allow this Court to make an informed decision regarding the contested
issue.
Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146
N.M. 853, 215 P.3d 791. Notably, Bregar’s district court challenge to Deputy Garcia’s

3We note that the State informed the district court that it would ask Deputy
Garcia about the origin and movements of Spurlin and Bregar’s bodies before and
during the crash at the very end of the colloquy on Deputy Garcia’s qualifications
after the trial court had already found that he would be permitted to offer expert
testimony about his reconstruction of the accident. No objection was made by
Bregar’s attorney at the time, although we note that our rules of preservation do not
apply where “a party has no opportunity to object to a ruling or order at the time it is
made[.]” Rule 12-216(A) NMRA. But Bregar does not argue this basis for
preservation on appeal, and our review of the record indicates that her trial counsel
had numerous opportunities to object to Deputy Garcia’s qualification to testify to his
opinion that Bregar was the driver based on the movement and position of bodies
during and following the crash, but did not.
22
expert qualifications lacked any reference to “occupant kinematics” and this specific
aspect of accident reconstruction was only addressed for the first time on appeal. The
district court—presented instead with evidence that Deputy Garcia was trained and
certified in accident reconstruction, had investigated nearly 500 crashes including 100
involving fatalities, and had been qualified as an expert witness in accident
reconstruction—was therefore unable to correct any error in qualifying Deputy Garcia
as an expert (if indeed it was error) that Bregar now specifically focuses on for the
first time on appeal. Moreover, the State was prevented from responding below to the
specific challenge now raised and we are denied the opportunity to examine a
meaningfully developed record. Accordingly, the question of Deputy Garcia’s
qualifications to testify in accident reconstruction from the standpoint of occupant
kinematics was not preserved.3

23
{30} 	Having determined that all of Bregar’s arguments are subject to review for plain
error, we shall address the remainder of our analysis separately. First, we discuss
whether any one of the three arguments Bregar makes on appeal shows that the district
court erred. Second, we discuss whether the error was plain; in other words, whether
any of the errors raise sufficiently “grave” concerns about the validity of the jury’s
guilty verdict that we must reverse it despite Bregar’s failure to adequately object to
Deputy Garcia’s expert testimony below. State v. Montoya, 2015-NMSC-010, ¶ 46,
345 P.3d 1056.
{31} 	Rule 11-702 NMRA, which governs the admissibility of expert opinion
testimony, provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.
The proponent of expert testimony under Rule 11-702 must show “(1) the witness . . .
[qualifies] as an expert; (2) the specialized testimony [will] assist the trier of fact; and
(3) the expert witness testimony [will] be limited to scientific, technical, or other
specialized knowledge in which the witness is qualified.” Andrews v. U.S. Steel Corp.,
2011-NMCA-032, ¶ 11, 149 N.M. 461, 250 P.3d 887 (citing State v. Alberico, 1993-
NMSC-047, ¶¶ 43-45, 116 N.M. 156, 861 P.2d 192).

24
{32} 	When expert witness testimony involves scientific knowledge, as the parties do
not dispute to be the case here, “the proponent of the testimony must establish the
reliability of the science and methodology on which it is based.” Andrews, 2011-
NMCA-032, ¶ 13. “[I]t is error [for the district court] to admit expert testimony
involving scientific knowledge unless the party offering such testimony first
establishes the evidentiary reliability of the scientific knowledge.” State v. Torres,
1999-NMSC-010, ¶ 24, 127 N.M. 20, 976 P.2d 20. Whether scientific knowledge is
reliable in turn requires an inquiry into whether the knowledge is derived from
“established scientific principles or methods.” Andrews, 2011-NMCA-032, ¶ 13. New
Mexico courts apply a non-exhaustive “list of factors” for answering this question:
(1) whether the theory or technique can be, and has been, tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known potential rate of error in using a particular
scientific technique and the existence and maintenance of standards
controlling the technique's operation; (4) whether the theory or technique
has been generally accepted in the particular scientific field; and (5)
whether the scientific technique is based upon well-recognized scientific
principle and whether it is capable of supporting opinions based upon
reasonable probability rather than conjecture.
Id. ¶ 14.
{33} 	As we have stated, Bregar first argues that “the district court erred in finding
[Deputy Garcia] qualified to give an opinion about ‘occupant kinematics’—i.e., the
study of the movement of bodies in an accident.” In essence, Bregar contends that

25
“calculat[ing] a person’s potential ejection from a vehicle during a rollover from the
actual resting location of the occupant . . . requires scientific or technical expertise”
that Deputy Garcia did not possess. This expertise, Bregar contends, consists of using
“seven . . . equally dense physics equations [to] get a basic idea of the number and
timing of rolls over the entire distance of the accident.” Bregar contends that
additional equations are required to determine “the passenger’s ejection trajectory at
every moment of the car’s rollover.” Ultimately, Bregar contends that “[t]his
simplified ejection model does not generate a certain ejection point, but rather
multiple possible ejection points.” Nor does it account for accidents like the Jeep here
involving yaw: in that case, additional equations are required. See generally Chad B.
Hovey 	et 	al., 	Occupant 	Trajectory 	Model 	Using 	Case-Specific 	Accident
Reconstruction Data for Vehicle Position, Roll, and Yaw, from Society of Automotive
Engineers 	Technical 	Paper 	Series, 	#2008-01-0517 	(SAE 	Int., 	April 	2008),
http://www.hoveyconsulting.com/pdf/Hovey%202008%20Occupant%20Trajector
y.pdf. Because Deputy Garcia did not apply these principles in reaching his
conclusion that Bregar was driving the Jeep, Bregar contends that the district court
abused its discretion in allowing him to so testify.
{34} 	The problem with this argument is that it fails to address the question of
whether 	Deputy 	Garcia’s 	opinion 	was 	itself 	based 	on 	a 	reliable 	scientific

26
methodology. See Andrews, 2011-NMCA-032, ¶¶ 13-14. Even if one method (here,
occupant kinematics) is the “gold standard” in a field, that does not preclude the use
of scientific methods that otherwise meet the baseline reliability criteria of Rule 11-
702. Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 105 (Ky. 2008); see
also Chapin v. A & L Parts, Inc., 732 N.W.2d 578, 587 (Mich. Ct. App. 2007) (“The
only proper role of a trial court [in evaluating the admissibility of expert testimony]
is to filter out expert evidence that is unreliable, not to admit only evidence that is
unassailable.”). As we have noted, Deputy Garcia was trained, certified, and
experienced in accident investigation and reconstruction, assigned to a team of
deputies tasked with investigating accidents, and had previously testified as an expert
in accident reconstruction. On the record before it, we cannot conclude that the district
court committed plain error in deciding Deputy Garcia was qualified to testify as an
expert in the general field of accident reconstruction in this case.
{35} 	We think Bregar’s second argument—that is, her argument that Deputy
Garcia’s 	ultimate 	opinion 	was 	not 	the 	result 	of 	his 	expertise 	in 	accident
reconstruction—is better understood as an argument that the State did not satisfy its
burden of showing that Deputy Garcia’s opinion (that Bregar was ejected through the
passenger window second and therefore was the driver of the crashed Jeep) was the
result of a reliable methodology. Viewed this way, we agree with Bregar that the State

27
failed to meet its burden as the proponent of this testimony to establish that Deputy
Garcia was qualified to offer this opinion as an expert under Rule 11-702.
Accordingly, had Bregar objected to Deputy Garcia’s scientific methodology as to this
determination, it would have been an abuse of discretion to admit Deputy Garcia’s
opinion that Bregar was the driver. See Andrews, 2011-NMCA-032, ¶ 11 (noting that
the proponent of expert witness testimony must prove that the witness is qualified to
offer an opinion based on application of scientific methodology).
{36} 	As we have explained above, the threshold question in determining the
admissibility of expert opinion testimony based on scientific knowledge is whether
the proponent of such testimony has shown that the knowledge or method in question
is reliable. Id.; see also Torres, 1999-NMSC-010, ¶ 24 (same). Here, we conclude the
State failed to meet its burden. To reiterate, the testimony that the State elicited from
Deputy Garcia was that he had been certified as an accident reconstruction expert by
the Institute of Police Management, had performed at least fifty reconstructions of
“[f]atal[]” 	car 	accidents, 	and 	that he 	had 	been 	“involved 	with” 	many 	more
investigations into non-fatal car accidents. But this testimony, standing alone, does not
provide a basis for any meaningful evaluation of whether his ultimate opinion—that
Bregar was driving the Jeep—was a result of the application of a reliable scientific
method. The State needed to put forward some evidence or testimony that revealed the

28
content 	of 	his 	formal 	qualifications—i.e., 	what 	he 	was 	taught 	in 	accident
reconstruction class, what certification with the Institute of Police Management
requires, and what methods (mathematical or otherwise) he uses to reconstruct an
accident—in order to enable the district court to assess the reliability of these methods
in producing the his resulting opinion that Bregar was the driver of the crashed Jeep.
Having failed to do so, the district court abused its discretion by allowing Deputy
Garcia to opine to the jury that Bregar was driving the Jeep.
{37} 	To be sure, Deputy Garcia elaborated on his opinion when he testified before
the jury that Bregar was the driver because the passenger side window was the only
window that broke during the accident, so the first person to be thrown from the Jeep
would have had to have been in the passenger seat. Deputy Garcia explained that a
rolling vehicle was like a “merry-go-round[,]” in that “when you’re getting ejected
out, you’re going the direction that the vehicle is rolling over.” But neither this
testimony nor anything else in the record provides a basis for gauging the reliability
of Deputy Garcia’s “merry-go-round” methodology of extrapolating the position
previously occupied by a person who is thrown from a vehicle. See Rule 11-702. For
all we can tell from the record, it is an ad-hoc theory that he had used only in this one
case. Even viewing Deputy Garcia’s qualifications and experience generously, there
is no basis to find that his opinion in this regard was the result of a reliable

29
methodology, as Rule 11-702 requires. There is no evidence that his theory has been
tested, that it had been subjected to peer review and publication, whether it had a
known potential rate of error, whether the theory or technique has been generally
accepted in the particular scientific field, or whether the scientific technique is based
upon well-recognized scientific principle and whether it is capable of supporting
opinions based upon reasonable probability rather than conjecture. See Andrews,
2011-NMCA-032, ¶ 14. The State cites State v. Vigil, 1985-NMCA-110, ¶¶ 12,14, 103
N.M. 643, 711 P.2d 920, as holding that accident reconstruction expertise is reliable
as a matter of law with respect to opinions regarding body movements during
accidents. But Vigil was decided when the prevailing test for the admissibility of
expert testimony was Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923), which
established the “general acceptance” test for the admissibility of an expert opinion.
Under Frye, the test for the admissibility of expert opinion testimony based on
scientific knowledge is whether the “scientific technique or principle about which the
expert proposes to testify . . . [is] accorded general scientific recognition.” Alberico,
1997-NMSC-047, ¶ 39 (internal quotation marks and citation omitted). The Frye test
was subsequently rejected by the U.S. Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)(holding that the Frye test was
superceded by the adoption of the Federal Rules of Evidence), and our own Supreme

30
Court in Alberico, 1993-NMSC-047, ¶¶ 2, 97. As Alberico noted, the problem with
this test is that its “inherent vagueness . . . creates ambiguities as to the scope of the
pertinent field or fields to which the scientific technique belongs.” Id. ¶ 41. This case
illustrates that concern. Accident reconstruction may be a well-accepted method for
determining the movement of vehicles during a car accident, but that does not mean
that every opinion offered by experts in accident reconstruction is generally accepted
(under Frye) or reliable (under our modern Rule 11-702 test).
{38} 	Moreover, to the extent that Vigil remains good law after Daubert and
Alberico’s rejection of the Frye standard, we find it (and the other out-of-state cases
cited by the State) factually distinguishable. In Vigil, the district court specifically
determined that the witness’s expertise in the field of accident reconstruction
“qualified [him] to determine the movement of bodies within the vehicle.” 1985-
NMCA-110, ¶¶ 12-14. Here, the district court never made any finding that Deputy
Garcia’s opinion regarding Bregar’s position fell within the scope of his expertise in
accident reconstruction. Indeed, after Deputy Garcia’s testimony had concluded, the
district court stated that “Deputy Garcia gave more opinions than [the district judge]
was anticipating, some of which I wasn’t comfortable with.” Moreover, the expert in
Vigil had testified as to his “training and knowledge of physics and engineering,”
which the court found sufficient to put the expert’s testimony within the trial court’s

31
“broad” discretion in determining its admissibility. Id. ¶ 16. Here, although Deputy
Garcia testified that he was certified as an accident reconstruction expert and had
taken an accident reconstruction course, the State did not elicit any testimony from
Deputy Garcia to elaborate on what these formal qualifications entailed. In other
words, even if it is within the discretion of a district court to conclude that training in
and knowledge of physics and engineering is sufficient to make a witness competent
to testify about the movement of bodies during a car accident, the total lack of
evidence that Deputy Garcia had such training precluded the district court in this case
from allowing his expert testimony to be presented to the jury. Accordingly, it was
error for the district court to allow Deputy Garcia to testify as an expert that in his
opinion Bregar was the driver under Rule 11-702. We therefore do not separately
address Bregar’s third argument that the admission of this testimony was in error, and
proceed to analyze whether the admission of Deputy Garcia’s expert testimony
satisfies our plain error standard of review.
{39} 	As we have noted above, our Supreme Court has stated that the standard of
review for plain error is whether the erroneous admission of evidence creates “grave
doubts concerning the validity of the verdict.” Montoya, 2015-NMSC-010, ¶ 46
(internal quotation marks and citation omitted). Our Supreme Court has elsewhere
characterized the standard of review for plain error as involving some determination

32
of whether “there has been a miscarriage of justice or a conviction in which the
defendant’s guilt is so doubtful that it would shock the conscience of the court to
allow it to stand.” State v. Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d
1071.
{40} 	In Lucero, an expert witness for the State diagnosed the alleged victim of the
defendant’s child abuse with post-traumatic stress disorder (PTSD), opined that the
complainant’s symptoms were “consistent with those in children who have been
sexually abused[,]” and that “the cause of the complainant’s PTS[D] was the sexual
molestation that she had been undergoing.” Id. ¶ 4. The expert also “recounted several
statements regarding sex abuse that the complainant had made to her during her
evaluation to the effect that her uncle had ‘done it to her.’ ” Id. ¶ 5. Finally, the expert
witness
commented directly on the complainant’s credibility. For example, she
testified that the complainant ‘was consistent in saying that it was her
uncle’ and was consistent in referring to the rooms in which she was
subjected 	to 	sexual 	abuse. 	[The 	expert] also 	commented 	on 	the
complainant’s demeanor, which she said changed when talking about the
sex abuse that she endured. She stated that if the complainant were not
telling the truth, she probably would have reacted differently than she
did.
Id. ¶ 6. Our Supreme Court found that it was plain error to admit this testimony for
three reasons. First, the witness “comment[ed] directly [on] the credibility of the
complainant[,]” id. ¶ 15; second, by naming the defendant as the victim’s abuser, the

33
expert’s testimony “was tantamount to saying that the complainant was telling the
truth[,]” id. ¶ 16; and third, the expert’s testimony amounted to a direct statement that
the complainant’s “PTSD symptoms were in fact caused by sexual abuse.” Id. ¶ 17.
These errors, the Court found, were plain because they affected “ ‘substantial rights
although the plain errors were not brought to the attention of the judge.’ ” Id. ¶ 13
(alteration omitted) (quoting Rule 11-103(D) (1993), currently Rule 11-103(E)).
{41} 	In Montoya, the expert witness was a pathologist who had conducted an autopsy
on the body of a baby whom the defendant had allegedly killed. The expert
opined that the injuries to [the victim’s] ears were intentional, caused by
someone grabbing and pulling them, and could not have been caused by
the [victim] herself. [The expert] saw between forty and fifty bruises on
[the victim’s] back, chest, and abdomen. The [victim] also had subdural
and subarachnoid hemorrhages on both sides of the brain, indicative of
significant head trauma. [The expert] said these types of injuries were
unlikely to be caused by a fall in a bathtub. [The expert] also found
significant internal abdominal injuries, which she characterized as classic
intentional injuries found in children who were punched or kicked in the
stomach.
[The expert] said that [the victim’s] death was the result of multiple blunt
force injuries. [The expert] concluded that the constellation of injuries on
[the victim’s] body was a result of intentional, nonaccidental trauma, and
that the manner of death was homicide, which she defined as death at the
hands of another.
2015-NMSC-010, ¶¶ 12-13. The Court found that the admission of this testimony was
not plainly erroneous, distinguishing Lucero based on the fact that the expert had not
identified the defendant as the person who had caused the injuries, and “unlike

34
Lucero, where the expert likely sealed the defendant’s fate with her testimony alone,
in this case there is ample evidence outside of [the expert’s] testimony to support the
jury’s finding of guilt.” Montoya, 2015-NMSC-010, ¶ 49.
{42} 	Although Montoya is one of our Supreme Court’s most recent applications of
the plain error standard, its holding appears to be in tension with Lucero and other
cases from the same court. According to Montoya, the standard of review for plain
error is roughly the same as the analysis for constitutional fundamental error: “the
[appellate court] must be convinced that admission of the testimony constituted an
injustice that created grave doubts concerning the validity of the verdict.” 2015-
NMSC-010, ¶ 46 (internal quotation marks and citation omitted). But Lucero states
that the standard of review for plain error is simply whether the error “affect[s]
substantial rights[,]” a standard which the court itself characterized as “less stringent”
than the standard of review for constitutional fundamental error. 1993-NMSC-064,
¶ 13 (internal quotation marks and citation omitted); see also State v. Torres, 2005-
NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877 (“The plain error doctrine is not as
strict as the doctrine of fundamental error in its application.”). By contrast, in the
analogous circumstance of harmless error review (where the state bears the burden of
proving that an error preserved by the defendant should not result in reversal, instead
of the defendant bearing the burden of showing that an unpreserved error should), our

35
Supreme Court has stated that courts should look to the effect that the error had on the
jury’s conclusion, not whether the other evidence that was presented would have
allowed the jury to reach the same conclusion. See State v. Tollardo, 2012-NMSC-
008, ¶ 42, 275 P.3d 110. This standard is close to the federal interpretation of the
“affects substantial rights” prong of plain error review, which the U.S. Supreme Court
has said “in the ordinary case means it affected the outcome of the district court
proceedings[] and . . . the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)
(alteration, internal quotation marks, and citations omitted).
{43} 	But we need not attempt to reconcile these cases here, because we hold that
Bregar cannot satisfy her burden of showing that the admission of Deputy Garcia’s
expert testimony was plainly erroneous under a more permissive standard. Unlike the
expert in Lucero, Deputy Garcia did not “comment directly [on Bregar’s] credibility.”
1993-NMSC-064, ¶ 15. Moreover, Deputy Garcia’s opinion was not the sole or
primary item of evidence indicating Bregar’s guilt. Our review of the record makes
clear that the unified focus of Bregar’s defense was to attack the evidentiary value of
Bregar’s hospital-bed admissions. And, apart from Deputy Garcia’s expert opinion,
additional circumstantial evidence that Bregar was the driver figured prominently in
the State’s case.

36
{44} 	In this regard, the jury was instructed that it was to determine whether Bregar’s
statement was voluntarily made, and both the State and the defense devoted significant
portions of their closing statements arguing the issue of whether the jury should credit
Bregar’s statement. Indeed, Bregar’s counsel explained that her lengthy and repeated
arguments concerning the voluntariness and the accuracy of the deputies’ recollections
of the statement were made because that evidence was “so important” to the State’s
case. The State conceded as much, but did not argue that the jury should believe
Bregar’s confession was voluntary because of Deputy Garcia’s testimony. Instead, the
State placed primary emphasis on the fact that Bregar had changed her story when she
found out that Spurlin had died, inconsistencies in the testimony of the witness that
Bregar had called to the stand to testify that she was not the driver, the fact that
Spurlin did not have a driver’s license, that Bregar admitted she owned the Jeep, and
that her occupation was serving as Spurlin’s live-in caretaker. Finally, the State
attacked Bregar’s defense that her leg brace prevented her from driving the Jeep by
presenting photographic evidence that the driver’s seat of the Jeep was found
positioned much further back than the passenger’s seat. While Bregar’s attorney
attacked Deputy Garcia’s credibility as an expert in closing, her chief concern was
attacking his credibility as a lay witness, highlighting circumstantial evidence that
Spurlin was the driver (such as the presence of his urine on the driver’s seat) and

37
witness testimony to the same effect. Viewed against this independent evidence of
Bregar’s guilt, we can conclude that Deputy Garcia’s expert opinion did not likely
affect the outcome of the jury’s deliberations. Thus, the district court’s erroneous
admission of Deputy Garcia’s ultimate conclusion as an expert witness was not plain
error. Accordingly, we will not reverse the district court’s judgment on this ground.
Sufficiency of the Evidence
{45} 	Bregar’s final argument on appeal is that the State failed to present sufficient
evidence to establish the corpus delicti of vehicular homicide. “The corpus delicti rule
provides 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.’ ” State v. Weisser, 2007-NMCA-015, ¶ 10, 141 N.M.
93, 150 P.3d 1043 (alteration omitted) (quoting State v. Paris, 1966-NMSC-039, ¶ 6,
76 N.M. 291, 414 P.2d 512). New Mexico courts apply the “modified trustworthiness
rule” set forth in Paris. State v. Wilson, 2011-NMSC-001, ¶ 15, 149 N.M. 273, 248
P.3d 315, overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37. “[T]he
existence of the corpus delicti is demonstrated by the fact that a harm or injury
occurred and that the harm or injury was caused by a criminal act.” Weisser, 2007-
NMCA-015, ¶ 10.

38
{46} 	Under New Mexico’s “modified trustworthiness rule” approach, “a defendant’s
extrajudicial statements may be used to establish the corpus delicti [of the charged
crime] when the prosecution is able to demonstrate the trustworthiness of the
confession and introduce some independent evidence of a criminal act.” Wilson, 2011-
NMSC-001, ¶ 15. This independent evidence can consist of either “direct or
circumstantial evidence, but such evidence must be independent of a defendant’s own
extrajudicial statements.” Weisser, 2007-NMCA-015, ¶ 12 (citations omitted). We
review de novo any claim that the State failed to prove the corpus delicti of the
charged offense, but we take all findings of fact that support a conviction as given if
supported by substantial evidence. Wilson, 2011-NMSC-001, ¶ 17.
{47} 	The jury was instructed that it should find Bregar guilty of vehicular homicide
if the State proved beyond a reasonable doubt that she “operated a motor vehicle while
under the influence of intoxicating liquor. . . [and Bregar] thereby caused the death of
[Mr.] Spurlin[.]” See § 66-8-101(A) (defining homicide by vehicle as “the killing of
a human being in the unlawful operation of a motor vehicle”); § 66-8-102(A) (“It is
unlawful for a person who is under the influence of intoxicating liquor to drive a
vehicle within this state.”).
{48} 	Bregar argues that because her confession was the only evidence in support of
the jury’s finding that Bregar was the driver, her conviction must be reversed. But the

39
State presented independent circumstantial evidence to prove the corpus delicti of
homicide by vehicle, including photographs showing that the driver’s seat of the Jeep
was reclined and pushed much further back than the passenger seat. Because Bregar
was wearing a leg brace at the time of the accident, this evidence could have supported
a conclusion that Bregar, not Spurlin, was driving the Jeep at the time of the accident.
Bregar argues that this evidence cannot be considered because the photographs were
taken by Deputy Garcia, and his expert testimony (which we addressed above) was
presented in error. But Bregar does not provide any support for her implicit assertion
that admission of car accident photographs taken by an investigating officer are
subject to Rule 11-702. Accordingly, we do not consider it any further. “[W]here
arguments in briefs are unsupported by cited authority, [we assume that] counsel[,]
after diligent search, was unable to find any supporting authority.” In re Adoption of
Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329.
{49} 	Bregar does cite cases where we found the corpus delicti wanting where the
evidence is “susceptible to multiple inferences” both for and against the crime having
occurred. Weisser, 2007-NMCA-015, ¶ 36. Bregar argues that in light of this
authority, we should ignore the evidence that the driver’s-side seat was reclined more
than the passenger-side seat because emergency responders entered the car and turned
the ignition off prior to Deputy Garcia’s arrival. This, Bregar states in her brief in

40
chief, shows that the picture of the seat equally supports an inference of innocence,
because the seat could have been “moved after driving.” But our Supreme Court has
recently reiterated that the “susceptible of multiple inferences” rule is “no longer an
appropriate standard for a New Mexico appellate court” to apply in reviewing the
sufficiency of the evidence supporting a verdict. State v. Garcia, No. 35,451, 2016
WL 4487786, 2016-NMSC-___, ¶ 24, ___ P.3d ___ (Aug. 25, 2016) (emphasis
omitted). Instead, our task on appeal involves first “draw[ing] every reasonable
inference in favor of the jury’s verdict and then . . . evaluat[ing] whether the evidence,
so viewed, supports the verdict.” 	Id. 	Although 	Garcia 	applies this rule to a
sufficiency-of-the-evidence challenge, we can see no meaningful reason not to also
apply the rule in the context of whether the State has shown a corpus delicti. Here, the
position of the seat supports an inference that Bregar was the driver; Bregar’s
argument that paramedics might have moved the seat when they entered the car goes
to the weight of the evidence, not its admissibility. A reasonable inference from this
evidence is that Bregar was the driver. As well, we again note that the State presented
evidence that the Jeep was Bregar’s, that only Bregar was licensed to drive, and that
Bregar was responsible for Spurlin’s care. Accordingly, the State proved the corpus
delicti of vehicular homicide with sufficient evidence apart from Bregar’s admissions
to survive Bregar’s challenge on appeal.

41
CONCLUSION
{50} 	We uphold the district court’s denial of Bregar’s pretrial motion to suppress her
hospital-bed admissions. In addition, the district court did not commit plain error by
admitting Deputy Garcia’s expert opinion testimony that Bregar was the driver. We
reject Defendant’s challenge to the sufficiency of the evidence supporting a corpus
delicti. The judgment of the district court is therefore affirmed.
{51} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
TIMOTHY L. GARCIA, Judge