August 20, 2009 – State of New Mexico v. Donald Lopez, No. 27,891

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	August 20, 2009
NO. 27,891
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DONALD LOPEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Susan Roth, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
CASTILLO, Judge.
{1} 	Defendant appeals his convictions for possession of a controlled substance,
driving while under the influence (DWI), and possession of drug paraphernalia
(current convictions), as well as the enhancement of his sentence based on prior
convictions for DWI. We hold that Defendant’s Fourth Amendment and speedy trial
rights were not violated and that his current convictions were supported by substantial
evidence. 	As to his prior DWI convictions, however, we hold that there was
insufficient evidence presented and reverse on this issue. 	Accordingly, we affirm
Defendant’s current convictions but remand for resentencing consistent with this
opinion.
I. 	BACKGROUND
{2} 	At approximately 2:45 a.m. on May 8, 2006, Officer Cullison of the Clovis
Police Department initiated a traffic stop after observing Defendant towing a trailer
missing a tail light and a license plate. When he approached, Officer Cullison noticed
that Defendant was very nervous and that his responses were inconsistent. At that
point, Officer Cullison ran a check on Defendant’s driver’s license and discovered that
Defendant’s license had been revoked, thereby subjecting him to immediate arrest.
Accordingly, Officer Cullison took him into custody.

2
{3} 	Officer Borders, who had arrived when Officer Cullison took Defendant into
custody, conducted an inventory of Defendant’s car. 	In the center console of the
vehicle, Officer Borders discovered a cell phone case containing a glass pipe wrapped
in a napkin. In the pipe was a white powdery residue. Because it was immediately
apparent to the officers that the pipe was used for the consumption of narcotics, it was
taken as evidence.
{4} 	Officer Cullison then took Defendant to the Curry County Detention Center,
administered a series of field sobriety tests, and concluded that Defendant was under
the influence. A subsequent blood test revealed the presence of methamphetamine.
The State’s toxicologist testified that the level of methamphetamine in Defendant’s
blood was sufficient to result in impairment.
{5} 	Defendant was tried and convicted of DWI, possession of a controlled
substance, and possession of drug paraphernalia. This appeal followed.
II. 	DISCUSSION
{6} 	Defendant raises four issues on appeal. 	He challenges (1) the denial of his
motion to suppress evidence that was seized from his vehicle, (2) the denial of his
motion to dismiss the charges on speedy trial grounds, (3) the sufficiency of the
evidence to support his possessory convictions, and (4) the sufficiency of the evidence
to establish that he has six prior convictions for DWI. We address each argument in

3
turn.
A. 	Motion to Suppress
{7} 	“In reviewing a trial court’s denial of a motion to suppress, we observe the
distinction between factual determinations[,] which are subject to a substantial
evidence standard of review and application of law to the facts[,] which is subject to
de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442
(second alteration in original) (internal quotation marks and citation omitted). “We
view the facts in the manner most favorable to the prevailing party and defer to the
district court’s findings of fact if substantial evidence exists to support those
findings.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.
{8} 	On the morning of trial, Defendant orally moved to suppress the pipe seized
from the vehicle. In response, the State first observed that the motion was untimely
and, second, asserted that the pipe was obtained in the course of a valid inventory
search of the vehicle. Defendant contended that even if the police were permitted to
conduct an inventory search, the seizure was improper because a warrant was required
before the pipe could be seized. The State countered that the seizure was permissible
under the plain view doctrine. 	The district court found the State’s argument to be
persuasive and denied the motion.
{9} 	“Under Article II, Section 10 of our New Mexico Constitution, a warrantless

4
search of a vehicle or warrantless seizure of an object from within a vehicle requires
a particularized showing of exigent circumstances or some other recognized exception
to the warrant requirement.” State v. Bomboy, 2007-NMCA-081, ¶ 4, 141 N.M. 853,
161 P.3d 898, rev’d on other grounds, 2008-NMSC-029, 144 N.M. 151, 184 P.3d
1045. 	In this case, we conclude that the search of the vehicle and the subsequent
seizure of the pipe from within the center console were supported by established
exceptions to the warrant requirement. We begin with the search.
{10} 	Defendant’s car was towed and impounded subsequent to his arrest and, as the
officers testified below, standard practice entails an inventory of the contents of such
vehicles. Taking an inventory of vehicle contents before towing and impoundment
is a well-recognized exception to the warrant requirement. 	See generally State v.
Ruffino, 94 N.M. 500, 501-02, 612 P.2d 1311, 1312-13 (1980) (identifying inventory
searches as an exception to warrant requirements and observing the widespread
recognition of the doctrine); State v. Nysus, 2001-NMCA-102, ¶ 26, 131 N.M. 338,
35 P.3d 993 (“Inventory searches are well established as an exception to the warrant
requirement of the Fourth Amendment.”).
{11} 	“[T]he scope of a permissible inventory search is broad[.]” State v. Shaw, 115
N.M. 174, 177, 848 P.2d 1101, 1104 (Ct. App. 1993). “[I]tems need not be in plain
sight to be subject to an inventory search.” Ruffino, 94 N.M. at 502, 612 P.2d at 1313.

5
To the contrary, the opening of compartments and closed containers is generally
permissible. See State v. Boswell, 111 N.M. 240, 242, 804 P.2d 1059, 1061 (1991)
(“Containers found in a lawfully[]impounded vehicle properly may be inventoried.”);
Shaw, 115 N.M. at 177, 848 P.2d at 1004 (observing that an inventory search “may
permit . . . that every item or container . . . be opened and searched”). Consequently,
the opening of the center console and the cell phone case does not require an
independent legal justification. See State v. Vigil, 86 N.M. 388, 391, 524 P.2d 1004,
1007 (Ct. App. 1974) (holding that where “the initial intrusion into a vehicle which
is lawfully in police custody is justified, an inventory of the contents of closed
containers is also justified”). 	We thus turn to consider the seizure of the pipe and
napkin.
{12} 	Once the pipe was discovered in the course of the inventory, the plain view
exception to the warrant requirement supported its seizure.
Under the plain view exception to the warrant requirement, items
may be seized without a warrant if the police officer was lawfully
positioned when the evidence was observed, and the incriminating nature
of the evidence was immediately apparent, such that the officer had
probable cause to believe that the article seized was evidence of a crime.
State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. 	In this case,
Officers Borders and Cullison testified that they immediately recognized the pipe and
white powdery residue as associated with the smoking of narcotics. See id. ¶ 13 (“An

6
officer’s experience and training, considered within the context of the incident, may
permit the officer to identify drug paraphernalia or drug packaging[.]”). Because the
pipe was clearly contraband, it could properly be seized pursuant to the plain view
doctrine, and no warrant was required. See State v. Foreman, 97 N.M. 583, 584-85,
642 P.2d 186, 187-88 (Ct. App. 1982) (observing that contraband which is discovered
in the course of an inventory search may be seized pursuant to the plain view doctrine
without a warrant).
{13} 	Relying on State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1 and
Ruffino, Defendant argues that the plain view doctrine cannot support the seizure of
the pipe. This Court addressed the first part of Defendant’s contention in Bomboy, a
case in which we explained that the plain view doctrine is inadequate to support the
seizure of contraband from the inside of a vehicle only when an officer lacks a valid
basis for searching the vehicle. 2007-NMCA-081, ¶ 6. Unless a valid exception is
recognized, we require the issuance of a valid warrant prior to the search of a vehicle
in New Mexico. 	Gomez, 1997-NMSC-006, ¶¶ 36-40. 	In Gomez, the exigent
circumstances exception was recognized as the valid exception relied upon for the
warrantless search of the defendant’s vehicle. Id. ¶¶ 41-43. In the present case, the
inventory doctrine provided a valid basis for the warrantless entry of the vehicle, and
therefore the subsequent warrantless seizure of the pipe pursuant to the plain view

7
doctrine meets the requirement of Gomez. 	See Bomboy, 2007-NMCA-081, ¶ 6.
Defendant’s reliance on Ruffino is similarly misplaced. Although Ruffino contains
language suggesting that a warrant “should normally be obtained” before evidence is
seized in the course of an inventory search, 94 N.M. at 502, 612 P.2d at 1313, this
Court has not required a warrant if the evidence in question is patently contraband.
See Foreman, 97 N.M. at 584-85, 642 P.2d at 187-88 (distinguishing Ruffino because
the evidence in that case was “not necessarily criminal in nature”). In this case, the
officers immediately recognized the pipe and residue as contraband and, therefore, no
warrant was required. 	See Foreman, 97 N.M. at 584-85, 642 P.2d at 187-88.
(concluding that no warrant was required in order to seize drugs, drug paraphernalia,
and 	a 	weapon 	that 	were 	discovered 	in 	the 	course 	of 	an 	inventory 	search).
Accordingly, we reject Defendant’s assertion that the warrantless seizure of the pipe
was impermissible.
{14} 	In his briefs on appeal, Defendant seeks to expand his arguments. Specifically,
Defendant now contends that the inventory search was invalid because the officers
failed to articulate sufficiently clear policies and procedures governing such activities
and because the scope of the search exceeded the legitimate purposes of the inventory.
Defendant does not provide us with any citation to the record indicating that he made
this argument to the district court. See Rule 12-213(A)(4) NMRA (requiring a party

8
to include “a statement explaining how the issue was preserved in the court below”).
Although the State has not relied on Defendant’s failure to preserve the arguments that
he makes on appeal, it is well established that “[w]here defendants have failed to
comply with [Rule 12-213], . . . an appellate court may decline to address such
contention on appeal.” 	State v. Nozie, 2009-NMSC-018, ¶ 15, 146 N.M. 142, 207
P.3d 1119 (second and third alterations in original) (internal quotation marks and
citation omitted). 	Our review of the record revealed no argument by Defendant
questioning whether the officers acted within an established policy or whether the
search exceeded the scope of an inventory. See State v. Boergadine, 2005-NMCA-
028, ¶ 30, 137 N.M. 92, 107 P.3d 532 (“Without an appropriate cite to the record, we
do not comb the record to find whether an issue was properly preserved.”).
{15} 	Before trial, Defendant challenged the search by arguing that it could not be
considered a search incident to arrest, and he challenged the seizure based on Officer
Borders’ failure to obtain a warrant. 	During trial, Defendant cross-examined the
officers regarding their training, but he did not renew his earlier motion to suppress
at that time. Nor did he raise the issue regarding the policy or the scope of the search
in his motion for a directed verdict. Defendant did not alert the district court at any
time to his current arguments and, as a result, the district court did not consider these
arguments 	as 	the 	basis 	for 	its 	ruling 	on 	suppression. 	See 	State 	v. 	Elliott,

9
2001-NMCA-108, ¶ 21, 131 N.M. 390, 37 P.3d 107 (“Our case law is clear that in
order to preserve an issue for appeal, a defendant must make a timely objection that
specifically apprises the trial court of the nature of the claimed error and invokes an
intelligent ruling thereon.”).
{16 } 	The preservation rule “serves many purposes: it provides the lower court an
opportunity to correct any mistake, it provides the opposing party a fair opportunity
to show why the court should rule in its favor, and it creates a record from which this
Court may make informed decisions.” State v. Janzen, 2007-NMCA-134, ¶ 11, 142
N.M. 638, 168 P.3d 768 (internal quotation marks and citation omitted). Defendant
did not provide the district court or the State with an opportunity to address these
arguments, either at the suppression hearing or later, during cross-examination.
Consequently, we are without a proper record and decline to address Defendant’s
unpreserved arguments.
{17} 	Because the search was a proper inventory search and because the seizure is
justified by the plain view doctrine, we uphold the denial of Defendant’s motion to
suppress and turn to consider whether his Sixth Amendment speedy trial right was
violated.
B. 	Speedy Trial Motion
{18} 	When reviewing a district court’s denial of a motion to dismiss on speedy trial

10
grounds, we give deference to the court’s factual findings. 	State v. Urban,
2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061. Weighing and balancing the
various factors is a legal determination that we review de novo. See id.
{19} 	To briefly summarize the relevant time frame, Defendant was arrested on May
8, 2006, and a criminal complaint was filed in magistrate court on May 10, 2006. This
complaint was dismissed when the State decided to pursue felony charges in district
court. 	A criminal information was filed in district court on September 15, 2006.
Defendant was ultimately tried and convicted on June 28, 2007. Defendant contends
that the delay between the arrest and the trial was impermissibly long and that his
convictions should be overturned on speedy trial grounds.
{20} 	When evaluating a speedy trial claim, the Court must consider the following
factors: 	(1) the length of the delay, (2) the reasons given for the delay, (3) the
defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant.
Id. We begin by considering the length of the delay.
1. 	Length of Delay
{21} 	“Initially, the length of delay must cross a threshold to establish a presumption
of prejudice and to trigger further inquiry into the other factors.” 	Id.; see State v.
Garza, 2009-NMSC-038, ¶ 21, ___ N.M. ___, ___ P.3d ___ (“[A] ‘presumptively
prejudicial’ length of delay is simply a triggering mechanism[.]”). Our Supreme Court

11
has recently reevaluated and increased the length of delay that must ensue in order to
trigger the remaining factors. See Garza, 2009-NMSC-038, ¶ 48 (adopting a one-year
threshold for simple cases, a fifteen-month threshold for cases of intermediate
complexity, and an eighteen-month threshold for complex cases). The Garza Court
made clear, however, that the new thresholds apply only to those cases where the
defendant’s motion to dismiss on speedy trial grounds was filed “on or after August
13, 2007.” 	Id. ¶ 50. Defendant filed his motion on April 13, 2007. Therefore, we
apply the pre-Garza standard in order to determine whether the delay surpassed the
threshold and whether further analysis is necessary. See id. Under the law at the time
that the motion to dismiss was filed, a delay of nine months was sufficient to establish
a presumption of prejudice in a simple case. Salandre v. State, 111 N.M. 422, 428,
806 P.2d 562, 568 (1991).
{22} 	In the present case, the parties disagree about when Defendant’s speedy trial
right attached to the charges. 	The State argues—without argument or citation to
authority—that Defendant’s right attached when the criminal information was filed
in district court on September 15, 2006. 	Defendant simply states that he was
incarcerated for fourteen months, counting from arrest to trial, and that he was
incarcerated for nine and a half months, counting from district court indictment to
trial. He does not argue which is the proper time frame. The question of when the

12
Sixth Amendment speedy trial right attached to the magistrate court misdemeanor
charges that were dismissed, refiled, and elevated to felony charges has not been
adequately briefed. 	Because the delay is greater than nine months by either
calculation, thus triggering the remainder of the speedy trial analysis, we do not decide
when Defendant’s right attached. 	See State v. Nozie, 2009-NMSC-018, ¶ 15, 146
N.M. 142, 207 P.3d 1119 (“When a criminal conviction is being challenged, counsel
should properly present [the reviewing] court with the issues, arguments, and proper
authority. Mere reference in a conclusory statement will not suffice and is in violation
of our rules of appellate procedure.” (alteration in original) (internal quotation marks
and citation omitted)). Further, by either calculation, the delay was only minimally
over the presumptively prejudicial period and, as a result, “this factor will not have a
large practical effect on the balancing.” State v. White, 118 N.M. 225, 226, 880 P.2d
322, 323 (Ct. App. 1994); see Garza, 2009-NMSC-038, ¶ 24 (“[T]he greater the delay
the more heavily it will potentially weigh against the [s]tate.”). We now turn to the
remaining factors.
2. 	Reasons for Delay
{23} 	Under the second factor, we consider the reasons for the delay by dividing the
period of delay into segments. The first period of delay is from Defendant’s arrest on
May 6, 2006, until Defendant’s arraignment on October 2, 2006. The second period

13
is from the arraignment until the first trial date on March 28, 2007. The third period
of delay is between March 29, 2007, when the trial was reset and May 2, 2007, when
a new attorney entered an appearance for Defendant. 	The last 	period of delay is
between May 3, 2007, and June 28, 2007, the ultimate trial date.
{24} 	The first five-month period of delay is attributable to several factors. Defendant
was first charged in magistrate court and those charges were eventually dismissed.
The State then refiled slightly different charges in district court, and Defendant was
indicted on those charges on September 15, 2006. There was a four-day delay caused
when the Department of Correction failed to transport Defendant for his arraignment
or preliminary hearing originally scheduled for September 28, 2006; the arraignment
took place on October 2, 2006. Defendant does not argue that the State acted in bad
faith during this period. We therefore weigh this period slightly against the State. See
Garza, 2009-NMSC-038, ¶ 28 (stating that “the State’s discretion to dismiss a
criminal case in magistrate court and reinstate charges in district court does not justify
the delay”); see also State v. O’Neal, 2009-NMCA-020, ¶ 20, 145 N.M. 604, 203 P.3d
135 (filed 2008) (“We allocate the reasons for the delay to each side and determine
the weight attributable to each reason, with the knowledge that the [s]tate has the duty
to make a good faith and diligent effort to bring a defendant to trial.”). During the
next five-month period, the case proceeded with customary promptness, and we hold

14
this period against neither party. See Maddox, 2008-NMSC-062, ¶ 27 (weighing the
period in which a case proceeded “with customary promptness” against neither party).
{25} 	On March 28, 2007, the scheduled trial was vacated because the trial judge was
not feeling well. The next day a new trial was set for April 27, 2007. This period of
delay weighs neutrally and does not count against either party. See White, 118 N.M.
at 226, 880 P.2d at 323 (holding that illness and recovery of a judge does not weigh
against either side); cf. State v. Kerby, 2001-NMCA-019, ¶¶ 11, 14, 130 N.M. 454, 25
P.3d 904 (holding that illness beyond control of either party constitutes a valid reason
for delay for speedy trial purposes).
{26} 	The last period of delay resulted from the need to vacate the second, April 27,
2007, trial setting, which the parties agree resulted from a late-discovered conflict
regarding Defendant’s representation by the public defender department. A new trial
date was set for June 28, 2007. This period of approximately two months must weigh
against Defendant. 	See White, 118 N.M. at 226, 880 P.2d at 323 (observing that
delays caused by the defendant’s receipt of new counsel were attributable to the
defendant). 	Thus, approximately five months weigh slightly against the State, six
months are neutral, and two months weigh against Defendant.
3. 	Assertion of the Right
{27} 	Defendant timely asserted his right to a speedy trial by filing a pro se motion

15
on April 13, 2007. Although the assertion “was not especially vigorous,” there is no
indication that Defendant acquiesced to the delay. 	Garza, 2009-NMSC-038, ¶ 34.
Thus, 	the 	third 	factor 	weighs 	against 	the 	State. 	See 	State 	v. 	Marquez,
2001-NMCA-062, ¶ 22, 130 N.M. 651, 29 P.3d 1052 (holding that the defendant’s
motion to dismiss and objection to extension constituted meaningful assertions of the
right to a speedy trial, such that the third factor weighed slightly against the State).
4. 	Prejudice
{28} 	Turning to the fourth and final factor, “[w]e examine the three types of
prejudice that Barker held relevant to the speedy trial analysis: (1) oppressive pretrial
incarceration; (2) anxiety and concern of the accused; and (3) the possibility of
impairment to the defense.” State v. Stock, 2006-NMCA-140, ¶ 34, 140 N.M. 676,
147 P.3d 885 (internal quotation marks and citation omitted). 	Defendant has not
argued that the defense was impaired and because Defendant was incarcerated due to
a parole violation, the pending charges cannot be said to have resulted in oppressive
pretrial incarceration. See State v. Maddox, 2008-NMSC-062, ¶ 32, 145 N.M. 242,
195 P.3d 1254 (holding that the defendant was not subject to pretrial incarceration
because he was already incarcerated on different charges); Urban, 2004-NMSC-007,
¶ 17 (“In this case, [the d]efendant was incarcerated on other charges and thus, despite
the delay, was not subject to oppressive pretrial incarceration.”).

16
{29} 	In addition, Defendant’s claim of undue anxiety or concern is little more than
a 	bare 	assertion, 	to 	which 	we 	accord 	no 	weight. 	See 	State 	v. 	Brown,
2003-NMCA-110, ¶ 19, 134 N.M. 356, 76 P.3d 1113 (rejecting a claim of prejudice
where there was no showing of undue anxiety or concern that was greater than that of
anyone whose liberty had been curtailed). Finally, Defendant contends that the delay
may have deprived him of the opportunity to serve sentences concurrently. 	Our
Supreme Court has recently decided, however, that such a claim is merely speculative.
See Maddox, 2008-NMSC-062, ¶ 35 (rejecting a similar argument on grounds that “it
is speculative as to how the district court may choose to exercise its discretion in
sentencing”). Accordingly, Defendant has not established cognizable prejudice. See
Garza, 2009-NMSC-038, ¶ 37.
5. 	Balancing the Factors
{30} 	In summary, the length of the delay, the reasons for delay, and the assertion of
the right factors weigh in Defendant’s favor. 	Nevertheless, the total length of the
delay was only minimally beyond the presumptive threshold. See id. ¶ 24 (explaining
that when the length of delay is not extraordinary, it does not weigh heavily in a
defendant’s favor). Three months of the delay were not attributable to the State, the
remaining ten months of delay weighed only slightly against the State, and Defendant
did not establish that he suffered cognizable prejudice. Under these circumstances,

17
we conclude that Defendant’s right to a speedy trial was not violated. 	See id. ¶ 40
(balancing the factors and concluding that there was no speedy trial violation when
the defendant failed to show prejudice and the remaining factors did not weigh heavily
in the defendant’s favor).
C. 	Sufficiency of the Evidence
{31} 	Defendant challenges the sufficiency of the evidence to support his convictions
for possession of methamphetamine and possession of drug paraphernalia. 	In
addition, Defendant argues that the State failed to provide sufficient evidence to
establish that he had prior DWI convictions. We begin by considering the evidence
supporting the current convictions.
1. 	Evidence Supporting the Current Convictions
{32} 	When reviewing a challenge to the sufficiency of the evidence to support a
conviction, we must determine “whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M.
126, 131, 753 P.2d 1314, 1319 (1988). “A reviewing court must view the evidence
in the light most favorable to the state, resolving all conflicts therein and indulging all
permissible inferences therefrom in favor of the verdict.” Id. “This [C]ourt does not
weigh the evidence and may not substitute its judgment for that of the fact finder so

18
long as there is sufficient evidence to support the verdict.” Id.
{33} 	To prove the crime of methamphetamine possession, the State was required to
demonstrate (1) that Defendant had methamphetamine in his possession, (2) that
Defendant knew or believed it to be methamphetamine, and (3) that this happened in
New Mexico on May 8, 2006. See NMSA 1978, § 30-31-23(D) (2005). With respect
to possession of drug paraphernalia charge, the State must have established (1) that
Defendant used or possessed drug paraphernalia; (2) that Defendant had the intent to
plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, ingest, inhale or otherwise introduce into
the human body, a controlled substance; and (3) that this happened in New Mexico
on or about the 8th day of May 2006. See NMSA 1978, § 30-31-25.1 (2001).
{34} 	The State called several witnesses to establish the date on which the pertinent
events occurred. 	The officers testified that they found a pipe containing a white
powdery substance in the vehicle that Defendant was driving—in a cell phone case
that was located in the center console. Subsequent forensic testing revealed that the
substance was methamphetamine. We conclude that the circumstantial evidence was
sufficient to establish that Defendant possessed or constructively possessed the
methamphetamine and the pipe. 	See State v. Barber, 2004-NMSC-019, ¶ 27, 135
N.M. 621, 92 P.3d 633 (“Proof of possession in controlled substances cases may be

19
established by evidence of the conduct and actions of a defendant, and by
circumstantial evidence connecting [the] defendant with the crime.”). Similarly, the
jury could have inferred from the evidence that Defendant knew that the substance
was methamphetamine and that he intended to use the pipe to inhale or otherwise
introduce methamphetamine into the human body—particularly in light of the
evidence that his blood test revealed a significant quantity of methamphetamine in
Defendant’s system. 	See State v. Montoya, 77 N.M. 129, 131, 419 P.2d 970, 971
(1966) (“Knowledge, like intent, is personal in its nature and may not be susceptible
of proof by direct evidence. 	It may, however, be inferred from occurrences and
circumstances.”).
{35} 	Defendant contends that the circumstantial evidence should not be regarded as
sufficient to establish possession and intent because the vehicle might theoretically
have been accessible to others. See State v. Phillips, 2000-NMCA-028, ¶ 8, 128 N.M.
777, 999 P.2d 421 (“When the accused does not have exclusive control over the
premises where the drugs are found, the mere presence of the contraband is not
enough to support an inference of constructive possession.”). The record, however,
contains no evidence whatsoever to support Defendant’s speculation about non-
exclusivity. 	To the contrary, the only evidence presented suggested exclusivity:
Defendant was the registered owner of the vehicle as well as the only occupant.

20
Accordingly, we reject Defendant’s assertion that there was insufficient evidence to
support the verdicts.
2. 	Evidence Supporting the Prior Convictions
{36} 	“Sentencing for a DWI conviction in New Mexico is graduated depending on
a defendant’s prior convictions, if any.” State v. Bullcoming, 2008-NMCA-097, ¶ 21,
144 N.M. 546, 189 P.3d 679, cert. granted, 2008-NMCERT-007, 144 N.M. 594, 189
P.3d 1216. 	“In proving prior DWI convictions for purposes of enhancing a DWI
conviction, the state has the initial burden of presenting evidence of the validity of
each of a defendant’s prior DWI convictions.” Id. ¶ 22 (internal quotation marks and
citation omitted). “If the [s]tate presents a prima facie case, the defendant may present
contrary evidence.” 	Id. 	“The state continues to have the ultimate burden of
persuading the district court, as factfinder, of the validity of each of the convictions.”
Id.
{37} 	Below, the State filed an information alleging that Defendant had eight prior
convictions for DWI. The document indicated that certified copies of the abstracts of
record and/or judgments and sentences associated with these prior convictions were
attached as exhibits. The exhibits, however, were never filed on record. When the
prosecutor discovered the oversight at the sentencing hearing, he presented a
document that he appears to have had on hand. 	Because the document was not

21
designated as an exhibit, it is not available for our review. 	The transcript of the
sentencing hearing, however, provides reasonably clear information about its nature
and content. The document is described as a copy of a prior judgment and sentence,
which was filed in the same judicial district in 2004. 	This judgment and sentence
reflected the district court’s determination that at that time in 2004 Defendant had
admitted to least six prior convictions for DWI as a part of a plea agreement.
{38} 	Defendant argued that the State had failed to make a prima facie showing with
respect to any prior convictions for DWI. 	Defendant pointed out that the State
generally presents entries of appearance and/or waivers of counsel, as well as
judgments and sentences for each claimed prior conviction, and he argued that without
such documents, the court could only sentence him for a first DWI offense.
{39} 	After hearing Defendant’s position, the district court asked whether the State
would like a continuance in order to gather the documents that it had intended to
present. Defendant promptly objected to the suggestion, contending that there had
already been significant delays and urging the court to impose the lighter sentence in
view of the State’s “lack of preparation.”
{40} 	In response, the prosecutor observed that in this context, proof of prior
convictions rather than sentences is required and that the State’s burden is merely to
make a prima facie showing. 	In light of these considerations, the prosecutor

22
contended that the document previously submitted was sufficient to meet the State’s
initial burden. 	To the extent that additional information might be desired, the
prosecutor suggested that the court could take judicial notice of its own records that
would reflect Defendant’s prior convictions for DWI within the district. Ultimately,
however, the prosecutor offered to supply the missing exhibits at a future date, if that
was desired by the court.
{41} 	Rather than continuing the proceedings, the court indicated that it was “going
to take appropriate judicial notice that . . . the court found . . . [D]efendant ha[d] at
least six prior DWI convictions . . . . Therefore . . . this current DWI is in addition to
that.” On appeal Defendant challenges this ruling, renewing his argument that the
State failed to make a prima facie showing of any prior DWI convictions. We agree
with Defendant.
{42} 	There appears to be relatively little authority in New Mexico specifically
addressing the prosecution’s burden of making a prima facie showing with respect to
prior DWI convictions. The statute relating to prior convictions for DWI does not
require the district court to make any findings—it simply mandates that “[u]pon a
fourth conviction pursuant to this section, an offender is guilty of a fourth degree
felony and . . . shall be sentenced to a term of imprisonment of eighteen months, six
months of which shall not be suspended, deferred or taken under advisement.” NMSA

23
1978, § 66-8-102(G) (2005) (amended 2008). Indeed, we are aware of no authority
which conclusively establishes what sort of evidence must be presented in order to
make a prima facie showing of the existence of prior DWI convictions.
{43} 	In State v. Sedillo, 2001-NMCA-001, ¶ 1, 130 N.M. 98, 18 P.3d 1051, the state
presented three documents to establish a prior DWI offense: a complaint filed with
the metropolitan court that included a handwritten notation of a guilty plea with a
judge’s signature, a signed waiver of counsel form, and a computer printout indicting
that the defendant had pled guilty to DWI, first offense. 	Id. ¶ 4. After rejecting a
series of evidentiary challenges to the documents, id. ¶¶ 7-9, the Sedillo Court held
that the handwritten notes were sufficient to satisfy the state’s burden. 	Id. ¶ 10.
Despite the degree of informality that the Sedillo Court was willing to accept, we are
unpersuaded that the document discussed by the parties in the present case—a single,
uncertified judgment and sentence, which relied on plea agreement admissions of
other convictions—is sufficient to establish a prior DWI conviction, particularly
because the document is not in the record and the only indication of its contents is
presented through argument of counsel. See Muse v. Muse, 2009-NMCA-003, ¶ 51,
145 N.M. 451, 200 P.3d 104 (“It is our practice to rely on assertions of counsel
unaccompanied by support in the record. 	The mere assertions and arguments of
counsel are not evidence.”). 	The records of prior convictions must be properly

24
admitted into the record and available for review on appeal, unless such proof is
stipulated to or otherwise waived by Defendant.
{44} 	We are further unpersuaded that the trial court’s willingness to review court
records in order to locate Defendant’s previous convictions would satisfy the State’s
burden of proof to establish the fact of those convictions. In order for a defendant’s
sentence to be enhanced under Section 66-8-102(G), “[t]he [s]tate bears the initial
burden of establishing a prima facie case of a defendant’s previous [DWI]
convictions.” State v. Pacheco, 2008-NMCA-059, ¶ 6, 144 N.M. 61, 183 P.3d 946
(internal quotation marks and citation omitted). Thus, the State bore the “ultimate
burden of persuasion on the validity of prior convictions in this context.” Id. (internal
quotation marks and citation omitted); State v. Gonzales, 1997-NMSC-050, ¶ 14, 124
N.M. 171, 947 P.2d 128 (“The [s]tate had the burden of persuasion; that is, the [s]tate
was required to show the validity of the prior convictions.”). The State’s failure in the
present case to meet that burden cannot be overcome by the trial court’s willingness
to check its own records. Accordingly, we reverse the enhancement of Defendant’s
sentence under Section 66-8-102(G) and remand for resentencing.
CONCLUSION
{45} 	For the foregoing reasons, we affirm Defendant’s current convictions, but we
reverse Defendant’s sentence and remand for resentencing in conformity with this

25
opinion.
{46 } 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
TIMOTHY L. GARCIA, Judge