July 15, 2014 – State of New Mexico v. Jesus Munoz, No. 32,861

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 15, 2014

NO. 32,861

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JESUS MUNOZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Gary K. King, Attomey General
Santa Fe, NM

Sri Mullis, Assistant Attomey General
Albuquerque, NM

for Appellee

Templeman & Crutchfield, P.A.
C. Barry Crutchfield
Lovington, NM

for Appellant

OPINION
GARCIA, Judge.
{1} 	Jesus Munoz (Defendant) was convicted of homicide by vehicle (reckless
driving) pursuant to NMSA 1978, Section 66-8-101(A), (C) (2004), and reckless
driving pursuant to NMSA 1978, Section 66-8-113(A) (1987), for his involvement in
an automobile collision that killed a passenger in the other car. Defendant appeals,
alleging there was insufficient evidence to support the verdicts. In reviewing the
evidence with the proper deference to the jury verdict, we conclude that Defendant’s
disregard of the warning from the Lovington police, veering his vehicle into the crash
zone, laughing, and speeding provide sufficient evidence for a rational jury to find that
Defendant acted recklessly. We affirm.
BACKGROUND
{2} 	The evidence is being viewed in the light most favorable to the verdicts. State
v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. On October 6,
2008, Defendant was involved in a collision in Lovington, New Mexico, that killed
a passenger in the other car. Prior to the fatal collision, Defendant drove from Hobbs,
New Mexico, to Lovington on Highway 18. Chip Marks was also driving on Highway
18 towards Lovington and, as he was attempting to merge into the right lane,
Defendant sped by in the right lane. Marks observed Defendant pass other cars and,

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concerned for the Defendant’s safety, called the Lovington Police Department and
reported that Defendant’s car was speeding and passing other cars.
{3} 	Officers Brackeen and Macias of the Lovington Police Department responded
to Marks’ report and conducted a traffic stop, pulling Defendant over within the
Lovington city limits. Although Officer Brackeen did not observe the Defendant
speeding or passing cars, Defendant admitted to Officer Brackeen he had been driving
eighty miles per hour. Officer Brackeen gave the Defendant a verbal warning and told
him to “slow down before he got somebody hurt.” Furthermore, Officer Brackeen told
Defendant to follow the forty-five mile per hour speed limit and advised him the speed
limit would decrease from forty-five to thirty-five miles per hour. Approximately two
minutes after the traffic stop was concluded, the Officers received notification of the
fatal collision.
{4} 	One to one and one-half miles from where the traffic stop occurred, Avenue F
intersects with Highway 18. Francisco Trejo was driving on Avenue F with his
passenger Cruzina Ruiz. They arrived at a stop sign located at the intersection of
Avenue F and Highway 18. At that point, Trejo prepared to cross the intersection.
Before Trejo began crossing Highway 18, he believed the cars approaching on
Highway 18 were at a sufficient distance to allow a safe crossing. While crossing,
Trejo suddenly became aware of Defendant’s car and the imminent possibility of the

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two cars colliding. Trejo attempted to avoid Defendant by accelerating. Defendant,
driving in the left lane, might have avoided the collision by veering to the left towards
the traffic lanes heading in the opposite direction (Trejo’s car was moving to
Defendant’s right). Instead, Defendant veered his car to the right, towards Trejo’s car.
In the moments before the collision, Trejo testified that Defendant appeared to be
laughing as he veered into Trejo’s accelerating car. Defendant crashed into the
passenger side of Trejo’s car, where Ruiz was located. Ruiz died as a result of the
injuries she sustained from the collision.
{5} 	At the physical location of the collision, the speed limit was thirty-five miles
per hour. According to the accident reconstruction report conducted by the New
Mexico State Police, Defendant was traveling between fifty-four and fifty-nine miles
per hour before he applied the brakes and thirty-seven to forty miles per hour at the
time of impact. These estimates were based on the examination of the front brakes of
the Defendant’s car by the police. Although not examined during the investigation, the
testimony established that, had the rear brakes been fully functioning, Defendant’s car
could have been traveling at an even higher rate of speed.
{6} 	The State charged Defendant with vehicular homicide by reckless driving and
misdemeanor reckless driving. At trial, the district court denied Defendant’s motion
to dismiss charges based upon the failure of the State to provide sufficient evidence

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to support the required element of recklessness. A jury convicted Defendant of both
crimes. Defendant timely appealed the jury verdict.
STANDARD OF REVIEW
{7} 	In reviewing the sufficiency of the evidence, the court determines “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. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057
(internal quotation marks and citation omitted). Evidence is viewed by the appellate
court in “the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.”
Cunningham, 2000-NMSC-009, ¶ 26. This Court “does not weigh the evidence or
substitute its judgment for that of the fact finder as long as there is sufficient evidence
to support the verdict.” State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211
P.3d 891 (internal quotation marks and citation omitted). In short, the court
determines if “a rational jury could have found beyond a reasonable doubt the
essential facts required for a conviction.” Garcia, 2011-NMSC-003, ¶ 5 (internal
quotation marks and citation omitted).
DISCUSSION
{8} 	Defendant claims the evidence is insufficient to establish the legal requirement

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that he acted in a reckless manner by disregarding the rights of others. Recklessness
is a statutory element in vehicular homicide by reckless driving and misdemeanor
reckless driving. The homicide by vehicle statute requires the State to prove beyond
a reasonable doubt that the defendant is guilty of reckless driving pursuant to Section
66-8-113. See § 66-8-101(C). Reckless driving is defined in Section 66-8-113(A) as
driving “carelessly and heedlessly in willful or wanton disregard of the rights or safety
of others and without due caution and circumspection and at a speed or in a manner
so as to endanger or be likely to endanger any person or property.”
{9} 	The district court instructed the jury that a conviction for vehicular homicide
by reckless driving required a finding that the Defendant “operated a motor vehicle
. . . in a reckless manner” and further defined reckless as driving with “willful
disregard of the safety of others and at a speed or in a manner that endangered or was
likely to endanger any person.” UJI 14-240 NMRA; UJI 14-241 NMRA. The jury
instruction for the lesser-included count of reckless driving required the jury to find
Defendant “drove carelessly and heedlessly in willful or wanton disregard of the rights
or safety of others and without due caution and circumspection and at a speed or in a
manner so as to endanger or be likely to endanger any person or property[.]” UJI 14-
4504 NMRA. Recklessness, being an element of both crimes, is recognized to be the
operation of a vehicle in such a way that is likely to endanger others and to willfully

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disregard the rights and safety of others. See State v. Wildgrube, 2003-NMCA-108,
¶ 7, 134 N.M. 262, 75 P.3d 862.
{10} 	Defendant concedes that the State presented sufficient evidence to establish he
was speeding at the time of the collision, but argues that the evidence is insufficient
to prove Defendant willfully disregarded the rights of others. In support of his
position, Defendant correctly argues that speeding alone is insufficient to constitute
recklessness. See State v. Clemonts, 2006-NMCA-031, ¶ 16, 139 N.M. 147, 130 P.3d
208; § 66-8-101(C) (“[S]peeding . . . shall not per se be a basis for violation of
[NMSA 1978,] Section 66-8-113 [(1987)]”). But speeding can constitute recklessness
if the speeding created a danger for others and additional conduct establishes that a
driver willfully disregarded the safety of others. State v. Simpson, 1993-NMSC-073,
¶ 21, 116 N.M. 768, 867 P.2d 1150; see UJI 14-241 (defining driving in a reckless
manner as a “willful disregard of the safety of others and at a speed or in a manner
that endangered or was likely to endanger any person”). Thus, the central issue to be
addressed is whether sufficient evidence exists for a rational jury to find the Defendant
willfully disregarded the rights or safety of others.
{11} 	In State v. Ibn Omar-Muhammad, the driver sped upwards of 100 miles per
hour and intentionally ran police roadblocks during a high-speed police chase. 1985-
NMSC-006, ¶¶ 3, 10, 102 N.M. 274, 694 P.2d 922 (addressing and recognizing

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recklessness in a case that also focused on depraved mind murder). Such facts were
sufficient to establish recklessness. Id. ¶ 26. In State v. Richerson, this Court held that
driving seventy miles per hour through a residential neighborhood with a speed limit
of twenty-five to thirty-five miles per hour, while driving on the wrong side of the
road, was sufficient evidence of reckless driving to allow the question to be submitted
to the jury. 1975-NMCA-027, ¶¶ 35, 38, 87 N.M. 437, 535 P.2d 644. In State v.
Sandoval, this Court upheld a conviction for vehicular homicide by reckless driving.
1975-NMCA-096, ¶ 7, 88 N.M. 267, 539 P.2d 1029. Along with speeding at the time
of the accident, witnesses saw the driver revving the engine, speeding, turning corners
at high speeds, straddling lanes, and making illegal U-turns minutes before the
collision occurred. Id. This Court recognized the driver’s “course of conduct
show[ed], without doubt,” that the driver operated his vehicle with disregard for the
rights and safety of others. Id.
{12} 	Defendant’s primary argument is based on the premise that his actions were less
egregious than the courses of conduct held to be reckless in the prior New Mexico
cases. Essentially, Defendant argues that because he did not drive on the wrong side
of the road or run police roadblocks, insufficient evidence exists to establish the
element of recklessness. The State responds that recklessness does not have a bright-
line threshold test, nor is there a statutory list of unsafe actions constituting willful

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disregard for the rights of others. It asserts that a driver’s course of conduct does not
have to be as egregious as driving twice the speed limit in a residential neighborhood
in order to establish a willful disregard for the rights and safety of others.
{13} 	Defendant’s actions in this case were sufficient to establish recklessness. Prior
to the collision with Trejo, Marks observed Defendant driving above the speed limit
and passing other cars. In Sandoval, a driver’s actions leading up to the collision were
considered as a factor contributing to recklessness. 1975-NMCA-096, ¶ 7. As a result,
it was proper for the jury to consider the evidence presented about Defendant’s
driving on Highway 18 as he approached Lovington, when it was determining the
reckless nature of his actions. More importantly, just prior to the collision, Officer
Brackeen warned Defendant “to slow down before he got somebody hurt.” Officer
Brackeen also informed Defendant that the current speed limit was forty-five miles
per hour and it would then be decreasing to thirty-five miles per hour. The fact that
the collision occurred just one to one and one-half miles from where Officer Brackeen
issued his verbal warning to Defendant is relevant to establish a compelling and
reasonable inference of whether Defendant willfully disregarded Officer Brackeen’s
warning. It is also reasonable for the jury to assess whether disregarding an Officer’s
warning to obey the upcoming speed limits constitutes a disregard for the rights of
others, given the additional dangers that speeding within the city limits imposes on

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pedestrians and other motorists. The facts also established that Defendant was
exceeding the speed limit immediately before the collision occurred, traveling
nineteen to twenty-four miles per hour over the thirty-five mile per hour speed limit.
[AB 4-5] Although speeding alone cannot establish recklessness, it is one of many
other contributing factors for the jury to consider when addressing whether Defendant
acted recklessly. See Richerson, 1975-NMCA-027 ¶¶ 35, 38.
{14} 	Policy considerations also support the jury’s verdict in this case. “Part of the
function of police officers is to carry out community caretaking functions to enhance
public safety.” State v. Reynolds, 1993-NMCA-162, ¶ 8, 117 N.M. 23, 868 P.2d 668,
rev’d on other grounds, 119 N.M. 383, 890 P.2d 1315. Automobiles are “a dangerous
instrumentality and the improper use thereof creates a likelihood of serious menace
to public safety and authorizes the most stringent use of the government’s police
power.” Johnson v. Sanchez, 1960-NMSC-029, ¶ 15, 67 N.M. 41, 351 P.2d 449.
Pulling over a car in order to deter speeding would logically promote public safety.
However, an officer’s ability to effectively promote public safety requires drivers to
comply with the warnings of the officer, and the monetary deterrence of issuing
speeding tickets should not be the only tool at the disposal of law enforcement to
promote compliance with a warning. Because the effectiveness of a warning to
promote public safety partially depends on a driver’s compliance with the warning,

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it would be detrimental to the public safety if drivers were allowed to totally disregard
an officer’s warning. This Court also recognizes that it is unreasonable to expect, let
alone require, absolute compliance with an officer’s public safety warning. Warnings
of this type naturally diminish over time. Nonetheless, Defendant’s failure to comply
with Officer Brackeen’s warning about the Lovington city speed limit, issued just
minutes prior to the collision, is further evidence of a willful and wanton disregard for
the rights and safety of others.
{15} 	Other substantive evidence established that Defendant might have avoided the
collision by directing his car to the left of the Trejo vehicle. Instead, Defendant turned
his car to the right, towards Trejo’s car and the resulting collision. Defendant argued
that it is abnormal for motorists to veer left into oncoming traffic lanes in order to
avoid a collision, and thus Defendant’s decision to veer to the right was a natural
reaction to an emergency. This argument was an alternative view of the facts that was
properly presented to the jury. The jury’s resolution of this disputed factual issue
could be decided in favor of either party, and we must now presume that the jury
agreed with the State’s factual position regarding the evidence. Cunningham, 2000-
NMSC-009, ¶ 26 (“[W]e must view the evidence in the light most favorable to the
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.”). By resolving this factual issue, it was also

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reasonable for the jury to find that Defendant’s decision to veer his car into Trejo’s
vehicle was also reckless and an additional factor in establishing that he disregarded
the rights and safety of others. Furthermore, Trejo testified it appeared that Defendant
was laughing as he veered his car toward the Trejo vehicle. Laughing, in such a dire
circumstance, can reasonably be inferred to depict a disregard for the rights and safety
of others.
{16} 	Admittedly, Defendant’s conduct might be considered less egregious than the
driver in Richerson who drove seventy miles per hour in a residential neighborhood
on the wrong side of the street. 1975-NMCA-027, ¶ 35. However, the State presented
sufficient evidence that Defendant disregarded the imminent warning issued by the
police moments before the collision, veered his car towards the ensuing collision
while laughing, and continued to speed at the time of the collision. Viewing this
evidence in the light most favorable to the verdict, we conclude there was sufficient
evidence for a rational jury to find that Defendant was driving recklessly when he
willfully disregarded the rights and safety of others. We affirm.
{17} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL D. BUSTAMANTE, Judge

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