October 5, 2026- State of New Mexico v. Lawrence McCormick, No. A-1-CA-42538

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: October 5, 2026	3
No. A-1-CA-42538	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
LAWRENCE MCCORMICK,	8
Defendant-Appellant.	9
APPEAL 	FROM 	THE 	METROPOLITAN 	COURT 	OF 	BERNALILLO	10
COUNTY	11
Nina Safier, Metropolitan Court Judge	12
Raúl Torrez, Attorney General	13
Santa Fe, NM	14
Michael J. Thomas, Assistant Solicitor General	15
Albuquerque, NM	16
for Appellee	17
Bennett J. Baur, Chief Public Defender	18
Allison H. Jaramillo, Assistant Appellate Defender	19
Santa Fe, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 10/5/2026 12:25 PM

OPINION	1
DUFFY, Judge.	2
{1} 	Defendant Lawrence McCormick challenges his convictions for aggravated	3
driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-102(D)(3)	4
(2016), and possession of an open container in a motor vehicle, contrary to NMSA	5
1978, Section 66-8-138(B) (2013). Defendant raises four issues on appeal: (1) the	6
metropolitan court erred in sentencing Defendant as a third-time DWI offender; (2)	7
the metropolitan court erred in declining to strike a juror for actual bias; (3) the	8
metropolitan court erred in admitting 911 call audio and the admission of the	9
recording violated Defendant’s right of confrontation; and (4) the State presented	10
insufficient evidence to support Defendant’s convictions. We affirm.	11
BACKGROUND	12
{2} 	In the afternoon on October 11, 2023, a driver on Louisiana Boulevard in	13
Albuquerque called 911 to report that a vehicle was stopped in the roadway with an	14
unconscious man in the driver’s seat who had a bottle of alcohol in his lap. When	15
officers with the Albuquerque Police Department arrived, they located a running	16
vehicle stopped in a lane of travel and blocking a side street, with a man later	17
identified as Defendant unresponsive in the front seat. One officer shut off the	18
vehicle and removed a bottle of alcohol from between Defendant’s legs as he	19
attempted to rouse Defendant. When Defendant came to, he reached for the steering	20

2
column and began fumbling for his keys before another officer removed the keys	1
from the ignition. Defendant then complied with instructions to exit the vehicle and	2
proceed to the curb. He had bloodshot, watery eyes and smelled of alcohol.	3
Defendant struggled to answer officers’ questions, slurred his speech, and attempted	4
to get up from the curb several times but could not keep his balance. Ultimately,	5
officers determined that it was unsafe to attempt standardized field sobriety tests due	6
to Defendant’s condition and placed him under arrest. Defendant subsequently	7
refused to submit to a breath test. He was tried before a jury and convicted of	8
aggravated DWI and possession of an open container. He was then sentenced as a	9
third-time DWI offender. This appeal followed.	10
DISCUSSION	11
I. 	The Metropolitan Court Did Not Err in Sentencing Defendant as a Third-	12
Time DWI Offender	13
{3} 	Defendant challenges his sentence for a DWI (third) conviction, arguing that	14
the sentence is illegal because the State did not present evidence of Defendant’s prior	15
DWI convictions, and Defendant did not otherwise stipulate to or waive the State’s	16
burden to submit such proof. Defendant contends that the absence of evidence of	17
prior convictions renders his sentence illegal. Our review is de novo to the extent	18
that we evaluate what is required under Section 66-8-102 to prove prior DWI	19
convictions to enhance a DWI sentence. See State v. Garrett, 2026-NMCA-016,	20
¶ 28, 584 P.3d 1049 (applying a de novo standard of review to determine a trial	21

3
court’s sentencing authority derived from statute as a feature of the court’s subject	1
matter jurisdiction). However, we review Defendant’s challenge to the evidence	2
supporting the sentencing enhancement for its sufficiency. See State v. Lopez, 2009-	3
NMCA-127, ¶¶ 31, 36-44, 147 N.M. 364, 222 P.3d 361 (analyzing challenge to	4
application of DWI enhancement under sufficiency of the evidence standard).	5
{4} 	Whether a defendant is charged with a first or subsequent offense under	6
Section 66-8-102(A)-(D), “the elements of DWI do not change.” State v. Diaz, 2007-	7
NMCA-026, ¶ 16, 141 N.M. 223, 153 P.3d 57. Instead, the statute provides	8
sentencing enhancements for repeat offenders, which are graduated based on the	9
defendant’s prior DWI convictions. State v. Anaya, 1997-NMSC-010, ¶ 18, 123	10
N.M. 14, 933 P.2d 223; Lopez, 2009-NMCA-127, ¶ 36; § 66-8-102(E)-(K). “In	11
proving prior DWI convictions for purposes of enhancing a DWI conviction, the	12
state has the initial burden of presenting evidence of the validity of each of a	13
defendant’s 	prior 	DWI 	convictions.” 	Lopez, 	2009-NMCA-127, 	¶ 36 	(internal	14
quotation marks and citation omitted). “If the state presents a prima facie case, the	15
defendant may present contrary evidence,” but the state continues to bear “the	16
ultimate burden of persuading the [trial] court, as factfinder, of the validity of each	17
of the convictions.” Id. (alteration, internal quotation marks, and citation omitted).	18
“Proof beyond a reasonable doubt of the prior DWI convictions is not needed.” State	19

4
v. Sedillo, 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051 (determining that a	1
prior DWI conviction must be proved by a preponderance of evidence).	2
{5} 	This Court has considered whether the state has met its burden only twice in	3
published opinions. In the first, Sedillo, this Court concluded that three documents	4
presented 	by 	the 	state—court-certified 	copies 	of 	a 	complaint 	filed 	with 	the	5
metropolitan court that had a handwritten notation of a guilty plea and a judge’s	6
signature but no file stamp, a signed waiver of counsel form, and a computer printout	7
indicating that the defendant had pleaded guilty to DWI, first offense—satisfied the	8
state’s burden because they all indicated that the defendant had pleaded guilty and	9
was convicted of a DWI first offense. Id. ¶¶ 4, 7-10.	10
{6} 	In the second, Lopez, this Court concluded the state’s presentation did not	11
suffice, “[d]espite the degree of informality that the Sedillo Court was willing to	12
accept.” Lopez, 2009-NMCA-127, ¶ 43. In the trial court, the prosecutor produced	13
“a single, uncertified judgment and sentence, which relied on plea agreement	14
admissions of other convictions.” Id. ¶ 43. That document was not made part of the	15
record, and “the only indication of its contents [was] presented through argument of	16
counsel.” Id. Because “assertions of counsel unaccompanied by support in the	17
record” are not evidence, this Court emphasized that “[t]he records of prior	18
convictions must be properly admitted into the record and available for review on	19

5
appeal, unless such proof is stipulated to or otherwise waived by [the d]efendant.”	1
Id. (emphasis added).	2
{7} 	Since Lopez, this Court has issued a series of memorandum opinions dealing	3
with circumstances similar to this case, where the state did not offer any documents	4
into the record to establish the defendant’s prior convictions, and we were required	5
to determine whether the defendant “stipulated to or otherwise waived” proof of their	6
prior convictions. Id.; see State v. Garcia, A-1-CA-34650, mem. op. ¶ 20 (N.M. Ct.	7
App. Aug. 28, 2018) (nonprecedential) (concluding that because the defendant’s	8
counsel volunteered to the court that he should be sentenced for a fifth DWI	9
conviction, 	he 	“effectively 	stipulated 	to 	[the 	d]efendant’s 	four 	prior 	DWI	10
convictions”); State v. Begay, A-1-CA-41326, mem. op. ¶¶ 3-4 (N.M. Ct. App. Mar.	11
10, 2025) (nonprecedential) (concluding the defendant had stipulated to or otherwise	12
waived any challenge to the validity of three prior DWI convictions he contested on	13
appeal), cert. denied (S-1-SC-40849, May 5, 2025); State v. Shirley, A-1-CA-41433,	14
mem. op. ¶ 21 (N.M. Ct. App. July 10, 2025) (nonprecedential) (rejecting the	15
defendant’s challenge to the evidence supporting his enhanced DWI sentence	16
because the defendant failed to challenge the validity of the prior convictions in the	17
district court, and concluding that the defendant “stipulated to or otherwise waived	18
the [s]tate’s requirement to prove the validity of those convictions” (internal	19
quotation marks and citation omitted)), cert. denied (S-1-SC-41040, Aug. 26, 2025).	20

6
As with these cases, the record in this case leads us to conclude that Defendant	1
stipulated to the State’s proof of his prior convictions.	2
{8} 	At a pretrial conference about six weeks after the criminal complaint was	3
filed, the State orally moved the metropolitan court to amend Defendant’s charge of	4
aggravated DWI to a third offense based on two prior DWI convictions, “one from	5
1988, and one from 1990.” The prosecutor stated that proof of the priors had been	6
shared with defense counsel. The metropolitan court asked defense counsel whether	7
he had received proof of those priors, and counsel confirmed that he had. The	8
metropolitan court granted the State’s motion to amend the charge.	9
{9} 	The following month, Defendant was arraigned on the amended aggravated	10
DWI third charge. At a later pretrial conference, defense counsel again confirmed	11
that he had received proof of the defendant’s priors from the State during discovery.	12
And at the conclusion of trial, after the jury returned its guilty verdict, the	13
metropolitan court addressed Defendant and advised him that the court would await	14
the presentencing report to learn more about his prior convictions, stating that she	15
would take into consideration that the prior convictions were relatively old. At the	16
ensuing sentencing hearing, the metropolitan court judge acknowledged that she had	17
received and reviewed the presentencing report.1 She then stated that she would	18
sentence 	defendant 	on 	an 	aggravated 	DWI 	third 	offense and 	referenced 	the	19
1The presentencing report is not part of the record on appeal.

7
mandatory jail time for a third offense set forth in Section 66-8-102(F)(2). After	1
articulating the proposed sentence, the court asked the State for its position, and the	2
prosecutor responded, “The State would like to defer to the court on your sentencing	3
recommendations, your honor.” The metropolitan court then asked for comment	4
from the defense, and defense counsel stated, “Yes your honor, just, that’s what I	5
was going to ask for, so I’m fine with that decision.”	6
{10} 	The foregoing exchanges between the metropolitan court and the parties, who	7
both agreed to the court’s proposed sentence and the reasons for it, amount to a	8
stipulation that Defendant was subject to sentencing for a third DWI offense because	9
he had two valid prior convictions. See Stipulation, Black’s Law Dictionary (12th	10
ed. 2024) (stating that a stipulation is a “voluntary agreement between opposing	11
parties concerning some relevant point; esp., an agreement relating to a proceeding,	12
made by attorneys representing adverse parties to the proceeding”). Defendant was	13
apprised of the prior convictions the State intended to rely upon before trial and twice	14
acknowledged having received proof of those convictions on the record. When	15
Defendant was given an opportunity to address the Court’s reliance on his prior	16
convictions at sentencing, he agreed that an enhanced sentence for a third DWI	17
conviction was appropriate. Based on these facts, we conclude Defendant stipulated	18
to the State’s proof of his prior convictions.	19

8
{11} 	Notwithstanding our affirmance, we note that cases involving stipulations on	1
these and similar facts present unnecessarily close calls about whether a defendant’s	2
acquiescence to an enhanced sentence or the application of prior DWI convictions	3
to enhance a sentence is a form of stipulation. Rather than asking for the parties’	4
position as to a proposed sentence, the better practice is for the trial court to address	5
the state’s burden of proof directly. If the state makes a proffer as to a defendant’s	6
prior convictions, as it did in this case when moving to amend the charge, the court	7
should determine on the record whether the defendant affirmatively stipulates to or	8
waives proof of their prior convictions. If the defendant agrees to stipulate to the	9
state’s proof, the court should require the defendant to confirm that they are the same	10
person identified in each prior conviction and confirm that the information provided	11
by the state accurately reflects the defendant’s prior convictions for DWI. See § 66-	12
8-102(S); see also State v. Gaede, 2000-NMCA-004, ¶ 6, 128 N.M. 559, 994 P.2d	13
1177 (“[The d]efendant does not contest the fact that he has entered no contest or	14
guilty pleas to four separate DWI charges, or that he is the same person involved in	15
each of those cases.”). In the event the defendant declines to stipulate to or waive	16
the opportunity to contest the state’s proof, the state will need to ensure that records	17
of prior DWI convictions are properly admitted into the record to make a prima facie	18
case. See Lopez, 2009-NMCA-127, ¶¶ 36, 43. Absent a stipulation or waiver, if the	19
state fails to admit records to establish the defendant’s prior convictions, the trial	20

9
court’s reliance on information contained in a presentencing report or other court	1
records—information that is not otherwise part of the appellate record—will not be	2
sufficient to overcome the state’s failure to meet its burden. See id. ¶ 44 (“The	3
[s]tate’s failure in the present case to meet that burden cannot be overcome by the	4
trial court’s willingness to check its own records.”).	5
II. 	The Metropolitan Court Did Not Err in Denying Defendant’s Motion to	6
Strike Juror 1 for Cause	7
{12} 	Defendant argues that the metropolitan court erred by denying his challenge	8
to Juror 1 for cause because the juror expressed actual bias against men. “We review	9
the trial court’s rulings regarding the selection of jurors for an abuse of discretion	10
because the trial court is in the best position to assess a juror’s state of mind, based	11
upon the juror’s demeanor and credibility.” State v. Mendez, ___-NMSC-___, ¶ 18,	12
___ P.3d ___ (S-1-SC-40404, Jul. 13, 2026) (internal quotation marks and citation	13
omitted). Trial courts are afforded a great deal of discretion in dismissing potential	14
jurors for cause, but “it is an abuse of such discretion to fail to excuse a juror who	15
could not be impartial.” 	Id. 	(internal quotation marks and citation omitted).	16
“Excusable partiality on the part of a member of the venire is established by showing	17
actual or implicit bias.” State v. Holtsoi, 2024-NMCA-042, ¶ 6, 547 P.3d 770. The	18
party claiming juror bias has the burden of proving bias. Mendez, ___-NMSC-___,	19
¶ 19. “In evaluating a party’s challenge, we start with the presumption that all	20
potential jurors are capable of impartiality so long as the jurors can conscientiously	21

10
and properly carry out their sworn duty to apply the law to the facts of a particular	1
case.” Id. (internal quotation marks and citation omitted).	2
{13} 	“Actual bias is bias in fact, or the existence of a state of mind that leads to an	3
inference that the person will not act with entire impartiality.” State v. Romero, 2023-	4
NMSC-014, ¶ 9, 533 P.3d 735 (internal quotation marks and citation omitted). “A	5
prospective juror demonstrates actual bias in one of two ways. First, a prospective	6
juror demonstrates actual bias by an unequivocal statement that [they] cannot be fair	7
and impartial.” Mendez, ___-NMSC-___, ¶ 19 (omission, internal quotation marks,	8
and citation omitted). Second, “actual bias is inferred when a juror’s responses call	9
into question the juror’s ability to decide the matter objectively.” Id. (internal	10
quotation marks and citation omitted). However, even when a prospective juror	11
makes a statement that calls into question their ability to decide the matter	12
objectively, “a prior or subsequent statement indicating the prospective juror’s	13
ability to remain fair and impartial is generally sufficient to uphold the trial court’s	14
denial of a motion to strike for cause.” Id.	15
{14} 	In this case, Defendant asked for leave to conduct additional voir dire of	16
Juror 1 because she indicated on her juror questionnaire that she was “biased against	17
all men.” Defendant asked Juror 1 whether she would be able to remain fair and	18
impartial given that the Defendant was male. Juror 1’s responses are not audible on	19
the recording of the exchange, but defense counsel’s remarks appear to confirm that	20

11
Juror 1 affirmed that she could be fair and impartial. Defendant then challenged	1
Juror 1 for cause because she “indicated that it depends on the evidence on whether	2
or not she could be fair and impartial.” The metropolitan court denied Defendant’s	3
motion, reasoning that Juror 1 “was asked twice the specific question about being	4
fair and impartial, she said yes twice, in the whole-group panel and alone. . . . She	5
talked about . . . , she does believe in innocent until proven guilty, she raised her	6
hand for a belief in beyond a reasonable doubt. . . . We didn’t ask enough questions	7
about this ‘biased towards men’ concept, but in her full articulation in person alone	8
she said again she could be fair and impartial.”	9
{15} 	Defendant concedes that Juror 1 answered affirmatively when asked direct	10
questions about whether she could be fair and impartial, both before and after she	11
was questioned about her bias against men. The metropolitan court expressly relied	12
on 	these 	statements 	when 	denying 	Defendant’s 	for-cause 	challenge. 	While	13
Defendant directs us to New Mexico authority where a prospective juror should have	14
been dismissed for cause due to actual bias because the juror never provided	15
assurances that they could view the evidence impartially, see Holtsoi, 2024-NMCA-	16
042, ¶¶ 7-10, in this case, Juror 1’s statements that she could be fair and impartial	17
are “generally sufficient to uphold the trial court’s exercise of discretion to deny	18
motions to strike for cause.” See id. ¶ 11. As a result, we conclude that the	19

12
metropolitan court did not abuse its discretion by denying Defendant’s motion to	1
strike Juror 1.	2
III. 	Defendant’s Hearsay Objection Was Not Preserved and the Admission of	3
the 911 Call Did Not Violate Defendant’s Confrontation Clause Rights	4
{16} 	Defendant raises two challenges to the metropolitan court’s decision to admit	5
audio of a 911 call. First, Defendant contends that the metropolitan court abused its	6
discretion when it determined that the contents of the call were excepted from the	7
rule against hearsay. Second, Defendant argues that the admission of the call violated	8
his constitutional right to confront witnesses against him. We address each argument	9
in turn.	10
A. 	Defendant Failed to Preserve His Hearsay Objection	11
{17} 	Defendant argues that the metropolitan court abused its discretion when it	12
ruled that the 911 caller’s statements were excepted from the rule against hearsay as	13
present sense impressions. At a pretrial hearing on the State’s motion in limine to	14
admit the 911 call, Defendant argued that the caller’s statement that “it looks like	15
[Defendant] was trying to turn” could not be a present sense impression because it	16
was in the past tense. The metropolitan court responded that it understood the	17
statement to be a “present sense description of how the car is facing or the direction	18
of travel” and asked defense counsel to articulate why this statement was not a	19
present sense impression. At this point, defense counsel expressly conceded that the	20
challenged statement “is in a sense a description of the vehicle that might fall under	21

13
the present sense exception.” The metropolitan court then ruled that the challenged	1
statement would not be excluded as hearsay. Defense counsel made no further	2
hearsay objection. “Acquiescence in the admission of evidence constitutes waiver of	3
the issue on appeal.” State v. Frazier, 2007-NMSC-032, ¶ 38, 142 N.M. 120, 164	4
P.3d 	1 	(omission, 	internal 	quotation 	marks, 	and 	citation 	omitted). 	Because	5
Defendant conceded that the 911 caller’s statements amount to a present sense	6
impression, his hearsay argument provides no basis for reversal.	7
B. 	Admission 	of 	the 	911 	Call 	Audio 	Did 	Not 	Violate 	Defendant’s	8
Confrontation Rights	9
{18} 	Defendant further claims the admission of the 911 call audio violated his	10
constitutional right to confront witnesses against him. Defendant argues that the	11
caller’s statements were generally testimonial in nature and should have been	12
excluded by the metropolitan court. This Court “reviews claimed violations of the	13
Confrontation Clause de novo.” State v. Sisneros, 2013-NMSC-049, ¶ 9, 314 P.3d	14
665.	15
{19} 	The Confrontation Clause provides a procedural guarantee that “an out-of-	16
court statement that is both testimonial and offered to prove the truth of the matter	17
asserted may not be admitted unless the declarant is unavailable and the defendant	18
had a prior opportunity to cross-examine the declarant.” State v. Navarette, 2013-	19
NMSC-003, ¶ 7, 294 P.3d 435; see State v. Aragon, 2026-NMSC-008, ¶¶ 42-43, 593	20
P.3d 596 (discussing Crawford v. Washington, 541 U.S. 36, 61 (2004)). Statements	21

14
are considered testimonial when they are made during the course of an interrogation	1
with the primary purpose of establishing or proving “past events potentially relevant	2
to later criminal prosecution.” Navarette, 2013-NMSC-003, ¶ 8 (internal quotation	3
marks and citation omitted); see id. (“[A] statement can only be testimonial if the	4
declarant made the statement primarily intending to establish some fact with the	5
understanding that the statement may be used in a criminal prosecution.”).	6
{20} 	This Court has relied on four criteria that are likely to render a statement	7
nontestimonial:	8
(1) the individual is describing events as they are actually happening	9
rather than describing past events; (2) the individual is facing an	10
ongoing 	emergency; 	(3) 	when 	viewed 	objectively, 	the 	elicited	11
statements are necessary to resolve a present emergency rather than	12
simply to learn what had happened in the past; and (4) the individual’s	13
statements were not made in the safety of a station house or in response	14
to a series of questions with an officer-interrogator taping and making	15
notes but were provided over the phone in an environment that was	16
neither tranquil nor safe.	17
State v. Soliz, 2009-NMCA-079, ¶ 13, 146 N.M. 616, 213 P.3d 520. Based on these	18
criteria, our Courts have concluded that statements made on a call to 911 are	19
nontestimonial in nature when they are offered to provide information necessary to	20
summon first responders and enable them to meet an ongoing emergency. See	21
Sisneros, 2013-NMSC-049, ¶¶ 14-17 (holding that a witness’s statements to a 911	22
call operator were not testimonial under the circumstances); State v. Largo, 2012-	23
NMSC-015, ¶¶ 14-21, 278 P.3d 532 (holding that a victim’s statements to a 911 call	24

15
operator were not testimonial under the circumstances); Soliz, 2009-NMCA-079,	1
¶¶ 19-30 (same). We reach the same conclusion here.	2
{21} 	The 911 caller was a witness to the scene who initiated the call to report a	3
nonresponsive driver blocking a roadway. On the recording, the caller tells the 911	4
dispatcher that a driver is “slumped over in his seat” with his head hanging by the	5
steering wheel, appearing to be “unconscious but breathing,” and that his car is	6
stopped in the middle of a lane of travel. The caller’s tone is urgent, and she tells the	7
dispatcher that she decided to call 911 because of the driver’s apparent condition.	8
The majority of the remainder of the call concerns descriptive identifying details of	9
the vehicle and the driver, which the caller relays as, or shortly after, observing them.	10
Viewing these statements in the context of the events and circumstances, which were	11
to summon emergency responders to assist Defendant, who appeared to be having a	12
medical emergency, we conclude the caller’s statements to the 911 operator were	13
nontestimonial, and the admission of the recording of the call did not violate	14
Defendant’s confrontation rights.	15
IV. 	Defendant’s Convictions Are Supported by Sufficient Evidence	16
{22} 	Finally, Defendant challenges his convictions for lack of sufficient evidence.	17
“The test for sufficiency of the evidence is whether substantial evidence of either a	18
direct or circumstantial nature exists to support a verdict of guilty beyond a	19
reasonable doubt with respect to every element essential to a conviction.” State v.	20

16
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	1
citation omitted). We “view the evidence in the light most favorable to the guilty	2
verdict, indulging all reasonable inferences and resolving all conflicts in the	3
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128	4
N.M. 711, 998 P.2d 176. “We do not search for inferences supporting a contrary	5
verdict or re-weigh the evidence because this type of analysis would substitute an	6
appellate court’s judgment for that of the jury.” State v. Graham, 2005-NMSC-004,	7
¶ 13, 137 N.M. 197, 109 P.3d 285. The sufficiency of the evidence is measured	8
against the jury instructions, which “become the law of the case.” 	State v.	9
Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517 (internal quotation marks and	10
citation omitted).	11
A. 	Operation of a Motor Vehicle	12
{23} 	Defendant argues that the State failed to present sufficient evidence to	13
establish that Defendant “operated a motor vehicle”—an element common to both	14
aggravated DWI and possession of an open container. The jury was instructed that	15
“[a] person is ‘operating’ a motor vehicle if the person is in actual physical control	16
with the intent to drive the vehicle, whether or not the vehicle is moving.” The jury	17
was further instructed, in accordance with UJI 14-4512 NMRA, to weigh fourteen	18
nonexhaustive factors to determine whether Defendant was in actual physical control	19
of his vehicle:	20

17
1. 	whether the vehicle was running;	1
2. 	whether the ignition was in the “on” position;	2
3. 	where the ignition key was located;	3
4. 	where and in what position the driver was found in the vehicle;	4
5. 	whether the person was awake or asleep;	5
6. 	whether the vehicle’s headlights were on;	6
7. 	where the vehicle was stopped;	7
8. 	whether the driver had voluntarily pulled off the road;	8
9. 	the time of day;	9
10. 	the weather conditions;	10
11. 	whether the heater or air conditioner was on;	11
12. 	whether the windows were up or down;	12
13. 	whether the vehicle was operable;	13
14. 	any explanation of the circumstances shown by the evidence.	14
{24} 	The jury was shown body camera footage from responding officers depicting	15
Defendant in the driver’s seat of a vehicle, which was stopped but running and	16
positioned in a lane of travel of a primary roadway such that it was blocking a side	17
street. A responding officer testified that he felt it necessary to place a tire deflation	18
device in front of the vehicle to prevent the vehicle from driving off. Defendant was	19
asleep behind the wheel even though it was the middle of the day and broad daylight.	20

18
After officers turned the vehicle off and woke Defendant up, he reached for the	1
steering column in a manner that officers interpreted as an attempt to restart the	2
vehicle, prompting them to remove the keys from the ignition. The fact-finder could	3
have reasonably relied on this evidence to determine that Defendant was in actual	4
physical control of his vehicle and had an intent to drive based on the factors set	5
forth in UJI 14-4512. See State v. Sims, 2010-NMSC-027, ¶ 35, 148 N.M. 330, 236	6
P.3d 642 (observing that physical control was demonstrated when the vehicle’s “key	7
was in the ignition, the ignition was on, and the driver was sitting behind the wheel	8
of the vehicle in a traffic lane while he applied the brakes”); id. (“That the vehicle	9
was on a roadway arguably increases the danger posed to both the defendant and the	10
public and supports an inference of the general intent to drive.”). The jury was free	11
to reject Defendant’s version of the events leading up to his arrest. See State v. Salas,	12
1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (“We defer to the [finder of	13
fact] when it weighs the credibility of witnesses and resolves conflicts in witness	14
testimony.”). We conclude sufficient evidence supported the jury’s determination of	15
actual physical control, and therefore, its conclusion that Defendant operated a motor	16
vehicle.	17
B. 	Intoxication	18
{25} 	Defendant also appears to argue that the State presented insufficient evidence	19
to establish that he was impaired at the time he operated the vehicle for purposes of	20

19
his aggravated DWI conviction. Defendant contends his behavior can be explained	1
due to the fact that he was upset, grieving the death of his friend, and “his behavior	2
was indicative of mental illness, not impairment.” The jury was instructed that the	3
State was required to prove beyond a reasonable doubt, in relevant part, that	4
Defendant operated a motor vehicle while “under the influence of intoxicating	5
liquor; that is, as a result of drinking liquor [D]efendant was less able to the slightest	6
degree, either mentally or physically, or both, to exercise the clear judgment and	7
steady hand necessary to handle a vehicle with safety to the person and the public.”	8
See UJI 14-4508 NMRA. This is commonly referred to as the “impaired to the	9
slightest degree” standard. State v. Gurule, 2011-NMCA-042, ¶ 7, 149 N.M. 599,	10
252 P.3d 823 (internal quotation marks and citation omitted).	11
{26} 	In the responding officers’ body camera footage, Defendant is clearly depicted	12
in his vehicle with an open and largely empty bottle of alcohol between his legs.	13
Defendant could not accurately recall his name, did not know where he was, could	14
not answer where he was coming from or where he was going, and did not know	15
how much he had to drink. Officers testified that Defendant had bloodshot, watery	16
eyes, slurred speech, and smelled of alcohol. Defendant was unsteady on his feet and	17
required assistance from officers to stand and walk, leading officers to decline to	18
attempt standardized field sobriety tests. The jury was entitled to make reasonable	19
inferences from this evidence, which is sufficient to support a finding that Defendant	20

20
was impaired to the slightest degree. See State v. Soto, 2007-NMCA-077, ¶ 34, 142	1
N.M. 32, 162 P.3d 187 (holding that the evidence was sufficient to support an	2
aggravated DWI conviction where the defendant refused to consent to blood alcohol	3
testing, had bloodshot, watery eyes, slurred speech, a smell of alcohol on his breath,	4
admitted he had been drinking, and the officers found several open containers of	5
alcohol where he had been drinking), overruled on other grounds by State v.	6
Tollardo, 2012-NMSC-008, 275 P.3d 110; State v. Neal, 2008-NMCA-008, ¶ 27,	7
143 N.M. 341, 176 P.3d 330 (“Given the testimony as to [the d]efendant’s driving	8
behavior, physical condition, admission of drinking, and performance on the field	9
sobriety tests, the factfinder could rely on common knowledge and experience to	10
determine whether [the d]efendant was under the influence of alcohol.”).	11
CONCLUSION	12
{27} 	We affirm.	13
{28} 	IT IS SO ORDERED.	14
_____________________________	15
MEGAN P. DUFFY, Judge	16
WE CONCUR:	17
____________________________	18
J. MILES HANISEE, Judge	19
____________________________	20
JANE B. YOHALEM, Judge	21